Oil giant didn't show relationship between substance abuse and risks: Arbitrator
ABSENT PROOF OF a rampant substance abuse problem, an employer’s plea to conduct random workplace drug and alcohol testing won’t find a sympathetic ear from arbitrators.
That was the message relayed in a recent ruling that pitted oil and energy giant Suncor against its union.
Handed down at the end of March, an arbitration board sided with the local Unifor chapter, ruling Suncor Energy’s plan to implement random testing at its plant in the Wood Buffalo region in Alberta was a breach of management rights.
Not only would such testing infringe on the individual privacy rights of employees holding safety-sensitive positions, as the union argued, but Suncor failed to draw a direct correlation between drug and alcohol use and workplace incidents and accidents, the arbitration board ruled.
While Unifor lauded the decision, president of the local 707A chapter Roland Lefort — who represents about 3,600 workers — said random testing is not a safety tool.
"To me, (random testing) is like a scapegoat," Lefort said. "If you put a program in there and if the expectation of the program is it’s going to be doing the work of protecting the workplace, then I think we miss the real opportunities to develop safety programs."
Instead, the root of the problem must be pin-pointed, and both employees and employer should be educated and trained on the matter, while fine-tuning existing safety programs that deal with the concern directly.
"We see random testing as alienating that workforce, rather than engaging it," Lefort added.
Though it already has a comprehensive substance testing rubric in place (that includes sniffer dogs, pre-employment checks and post-incident and reasonable cause testing), Suncor argued more had to be done to alleviate its health and safety concerns.
"Despite our comprehensive safety measures, we have pressing safety concerns with regard to alcohol and drugs," said Sneh Seetal, Suncor’s manager of media relations. "In the last seven years, there have been three deaths at our site where alcohol and drugs were a factor. We believe one death is one too many."
Random testing policies have been in the spotlight of late. Take the Irving Pulp and Paper mill case, which went all the way to the Supreme Court of Canada. Last summer, a judge struck down the Saint John, N.B.-based kraft mill’s introduction of random testing back in 2006, citing a lack of evidence that alcohol was a problem at the plant.
The precedent-setting case was applied during the Suncor decision — and improperly so, argued Barbara Johnston, of Dentons Canada LLP and counsel for the company. While safety and privacy were the two overlying themes in both cases, a contextual analysis must be applied. Providing evidence of just a bargaining unit drug and alcohol problem, she explained, is a whole different ball game than proving an overall workplace problem — both of which exist at Suncor, she said.
"But when you balance privacy against the safety risks, there’s no question that (Suncor) has an obligation to ensure safe work environments," Johnston went on to say. "The safety interest is paramount in this case."
Moreover, Suncor said it does — and intends to — take the privacy of its employees to heart.
As part of its current testing standard, Suncor has comprehensive measures to ensure the respectful testing and privacy of individuals is considered, Johnston said. Random testing is simply the next logical step in the evolution of safety.
"Suncor has been on a safety journey for over 20 years as it relates to mitigating risk with alcohol and drugs," she added. "And over the last 20 years, they’ve introduced incremental measures, and none of those incremental measures have addressed or remediated the risk associated with alcohol and drugs. So, this is the next incremental step that they needed to take to address the known safety risks."
There is a lesson to be learned for employers looking to implement random testing, said Bob Barnetson, a professor of labour relations at Athabasca University in northern Alberta.
"It poses a significant invasion of privacy, and any testing needs to be balanced against the potential gains of testing," explained Barnetson. "Where random testing falls down is the lack of evidence that it has any relationship to incidents or injuries — and I think that remains a challenge."
As such, the case will signify to employers that they will need to make a bulletproof case if they wish to implement random testing policies, he added, citing the Irving case as a clear example.
"The Supreme Court test talks about balancing interests. There needs to be a case made for random testing, and in this case, Suncor did not meet the standard," he said. "The company already has a fairly significant testing program in place — there was no evidence random testing would yield any significant gain."
Stigma attached to drug and alcohol abuse could perhaps be a root cause to a lack of understanding on the matter, Barnetson went on to say. As such, evidence that drug use leads to workplace injuries has been hard to come by.
"We all get caught up in the moral approbation around drug use that maybe we miss or assume things about drug use that aren’t true," Barnetson added.
Suncor has appealed the case.
