Contractor filed human rights complaint over site owner's drug testing policy
The Alberta Court of Appeal has ruled a company that required workers entering their worksite to undergo drug tests is not the “employer” of those workers for the purposes of the Alberta Human Rights Act.
This case involved a worker named Luka, who was an employee of Lockerbie & Hole, a subcontractor working at one of Syncrude’s construction projects. Lockerbie and Syncrude operated at arm’s length from each other.
Syncrude required all workers to undergo drug tests before working at the site. Luka tested positive for marijuana and was not allowed to work at the site. He launched a human rights complaint, but a human rights panel dismissed his complaint because it found he did not have a disability. However, the panel decided Syncrude was Luka’s employer for the purposes of the Alberta Human Rights Act. Fearing the implications of this decision, both Lockerbie and Syncrude appealed.
The court explained that whether or not there is an employment relationship depends on the context. For example, a person might be an “employee” for the purposes of human rights legislation but not for common law wrongful dismissal cases.
“Where the context and purpose of the statute require it, courts have expanded the definition to include what might loosely be called ‘near-employment,’” said the court. “The term is taken to include relationships where one person provides services to another, but not within a traditional master and servant relationship.”
The result is that in some cases, a person can have more than one “employer.”
The court set out the following factors in determining whether there is an employment relationship for the purposes of human rights legislation:
•Whether there is another more obvious employer involved.
•The source of the employee’s remuneration and where the financial burden falls.
•Normal indicia of employment, such as employment agreements, collective agreements, statutory payroll deductions and T4 slips.
•Who directs the activities of, and controls, the employee and has the power to hire, dismiss and discipline.
•Who has the direct benefit of, or directly utilizes, the employee’s services.
•The extent to which the employee is a part of the employer’s organization, or is a part of an independent organization providing services.
•The perceptions of the parties as to who was the employer.
•Whether the arrangement has deliberately been structured to avoid statutory responsibilities.
In this case, Luka had a “more obvious” employer than Syncrude (Lockerbie) and none of the other indicators would suggest Syncrude was Luka’s employer. Therefore, Syncrude could not be Luka’s employer under the Alberta Human Rights Act, said the court
So what would happen if a person was excluded not because of a drug test, but because of their race or gender? The Court of Appeal answered that while this may be unfortunate, Alberta’s human rights legislation does not cover every kind of relationship.
