B.C. employer allowed to test for alcohol: Board

Employee’s recent behaviour and smell of alcohol at safety-sensitive workplace made employer suspicious

A British Columbia arbitrator has added support for the viability of drug and alcohol testing for safety-sensitive positions, finding a company had the right to ask employees to take an alcohol test if impairment was suspected.

Eurocan Pulp and Paper operated a mill and dock for its paper products in Kitimat, B.C. Bernard Brown worked for Eurocan for 30 years in various positions, including that of a ship loader, where he loaded large cargo onto barges and cargo ships at the dock terminal. Because the work involved moving large and heavy items, such as heavy rolls of paper, with heavy equipment and vehicles, Eurocan considered safety to be the “number one priority.”

Absenteeism and strange behaviour

In October 2008, Brown was absent from work for a few days because of an earache. For some of the days, he had agreed to come in but then called in sick. For three consecutive days when he was off sick, Eurocan tried to contact Brown to inform him of his next scheduled shift on Oct. 20. However, the company was unable to contact him and he didn’t show up that day. Brown claimed he called in early that morning but Eurocan had no record of receiving the message.

Eurocan was able to contact Brown on Oct. 20 and told him he was scheduled to work the next three days. However, Brown was absent all of those days and Eurocan was unable to contact him. After many unsuccessful attempts, Eurocan told the union and the union contacted the police.

On the evening of Oct. 23, Brown called his supervisor at home and said in slurred speech, “don’t ever call the cops on me again” and hung up. He then had another telephone conversation with his supervisor and the assistant superintendent where he didn’t make sense. He was told to come in to work on Oct. 27 with a medical note and meet with them.

Employee showed up for work smelling of alcohol

On Oct. 26, Brown estimated he drank eight beers with friends. When he reported to work at 7:20 a.m. the following day, his supervisor smelled alcohol on him from a distance. He asked Brown to wait for the meeting and went to get the assistant superintendent. They came to get him 30 minutes later but he was gone. They called his home and Brown answered, saying he left because there was no union steward there. He returned at their request and he still smelled strongly of alcohol.

Rather than discuss Brown’s attendance record as originally planned, management decided to raise its concerns over his showing up to work smelling of alcohol. Brown said he had been drinking the night before but not that day. Management requested Brown take an alcohol test under Eurocan’s policy, which stipulated employees have a responsibility of reporting to work fit for duty and management could request a test if there were grounds to believe an employee was not fit for duty.

Brown refused to take the test and Eurocan suspended him until further notice. He was told the company would give him a taxi ride home and if he drove home, management would notify the police because they believed he was impaired. Brown refused and drove home. Eurocan called the police, who went to Brown’s home at 11 a.m. and found him drinking.

That incident, combined with what Eurocan considered odd behaviour during Brown’s absences from work and the inability to contact him, led the company to believe he might have a problem. It sent him a letter dated Nov. 8, 2008, saying a condition of his return to work would be to see a substance abuse professional to assess if he had a dependency on alcohol. If he did, he would have to participate in a treatment plan. If no dependency was found, the company would investigate the reasons for his attendance issues. Eurocan also encouraged Brown to use its employee assistance program. Brown refused and filed a grievance.

Company’s policy was reasonable, clearly communicated to employees

The arbitrator found Eurocan clearly communicated its policy to employees by sending out a letter and posting it on the bulletin board. Brown admitted to being aware of it. He had also been tested once before and was aware of the policy’s limit of .04 per cent blood alcohol content, which he had blown over on a breathalyser test.

Brown’s job as a ship loader was also a “safety-sensitive position at a safety-sensitive worksite,” the arbitrator said, and Brown should have assumed he would be on the work crew performing those duties when he came to work. Eurocan’s policy prohibited reporting for duty under the influence of alcohol, including hangover effects.

The strong smell of alcohol on Brown and his admission he had been drinking the night before “was sufficient to raise the question of fitness, particularly in a workplace where safety is of paramount importance,” the arbitrator said. He ruled Eurocan had reasonable cause to ask for the test.

“Reporting for duty in that condition and in a context of erratic or out-of-character behaviour justified a response,” the arbitrator said. “There was just cause for the employer to ask (Brown) to submit to a test under the policy.”

The arbitrator also found it was reasonable to ask Brown to see a substance abuse professional before returning to work and Eurocan made an effort to take care of this as quickly as possible so Brown would be able to return to work. However, Brown didn’t make an appointment and remained off work.

The arbitrator denied the grievance and left it up to Brown to follow the policy and return to work. See Eurocan Pulp & Paper Co. v. C.E.P., Local 298, 2009 CarswellBC 313 (B.C. Arb. Bd.).

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