Court overruled arbitration board's finding that employer needed to show previous alcohol-related accidents to justify random testing
A New Brunswick company should be allowed to use random drug and alcohol testing for safety sensitive positions, the New Brunswick Court of Queen’s Bench has ruled.
In 2006, Irving Pulp and Paper, a pulp and paper company based in Saint John, N.B., implemented a policy on employee alcohol and drug use. The policy allowed for unannounced random drug tests for employees in safety sensitive positions and required those returning to or starting a safety sensitive position to pass a test.
Perley Day, a millwright in the maintenance department at Irving’s Saint John mill, was considered to be in a safety sensitive position under the policy. On March 13, 2006, he was selected for a random breathalyzer test during his shift. Day, who was religious and said he hadn’t had a drink in 27 years, felt humiliated and degraded by the notification and testing process. The union grieved the policy, arguing there “was no reasonable grounds to test or incident which would justify such a measure” and the ability to conduct random tests should depend on the history of safety in the workplace rather than the dangerousness of the plant.
In November 2009, the New Brunswick Labour Board upheld the grievance, finding random drug and alcohol testing wasn’t necessary and too intrusive. It said in the case of dangerous workplaces such as what Irving claimed its workplace to be, the onus was on the employer to demonstrate a history of alcohol-related incidents to justify random testing and the level of risk in its workplace. It also found an employer engaged in an “ultra-hazardous endeavour” would have a less of an onus to justify testing because of the increased risk.
The board also found in order for an employer to make rules in a unionized workplace without union consent, the rules had to be consistent with the collective agreement and reasonable.
Irving appealed the decision to the New Brunswick Court of Queen’s Bench, arguing the board’s decision created a new category of “ultra-dangerous operations” for which random testing was acceptable, rather than the “safety sensitive” conditions established previously. The company also argued that using only past incidents to justify “a vigilant and balanced policy of drug and alcohol detection” was a reactive rather than a proactive approach resulting in safety measures that would be too late.
The court found Irving’s policy was reasonable since the random testing applied only to those in positions where there was a risk to employees and the environment, which made it “minimally intrusive.” It also found Irving’s work environment was an “inherently dangerous work environment” and drug testing was important to the company’s efforts to reduce the risk. It found the breathalyzer method was less intrusive than other drug testing methods, which made it more acceptable and gave it less impact on employee privacy.
“There is unquestionably a threshold that exists somewhere between a dangerous workplace such as the Irving mill and an office environment, for example, below which an employer must show a history of accidents to justify such a policy. However, I find that it is not reasonable to establish that threshold above the level of a workplace as dangerous as the Irving mill such that only workplaces that are in the category of ‘ultra dangerous’ are permitted to proactively implement such a policy without a history of accidents,” said the court.
The court also agreed with Irving that using a history of accidents to justify random drug testing was not logical and found the board’s decision on this point was also unreasonable.
