Testing required by employer following workplace accident
After electrician George Degg was in an on-site accident, his employer — Jacobs Industrial — required him to undergo drug and alcohol testing. When Degg refused, he was barred from returning to work.
Degg filed an individual grievance against his Ontario-based employer. His union — the International Brotherhood of Electrical Workers (IBEW) Local 353 — filed a policy grievance, arguing Degg was unjustly dismissed. Both grievances argued the requirement to undergo drug and alcohol testing violated the parties’ collective agreement, Degg’s privacy rights and relevant human rights legislation.
The employer, however, argued Degg was simply suspended and could return to work as soon as he underwent the drug and alcohol tests.
The employer’s drug and alcohol policy provided for mandatory post-incident testing if external factors had been eliminated as a possible cause for a workplace accident.
According to the policy, if drugs or alcohol cannot be ruled out as a contributing factor explaining the incident, then a post-incident test was required.
On May 30, 2012, Degg was driving an employer vehicle with a box on the back and a trailer hitch. He drove to the site’s administration building and as he was parking his truck, backed into the only other vehicle in the parking lot. Two other employees witnessed the collision.
Degg — who was wearing a safety helmet, safety glasses and ear plugs — used his side and rear view mirrors to reverse his vehicle into the parking spot. He did not turn around to look through his rear window because of a back injury, and he did not ask either of the other employees to assist him in backing into the parking spot.
Following the incident, Degg told the employer he had not seen the other vehicle in the parking lot and admitted the accident was his fault. Later, he suggested one of the other employees in the parking lot should have spotted for him and guided him safely into the spot.
The employer found that the circumstances of the accident were not outside of human control, such as wind or weather, nor was there any mechanical breakdown or operational upset. Because Degg’s actions were a contributing factor to the incident, the employer concluded the influence of drugs or alcohol could not be ruled out and Degg would have to undergo a substance use test.
Degg refused to take the test. He had been informed by the union’s business agent that he was within his rights to decline the drug and alcohol tests, and said he feared the information gathered from the test would not be kept confidential.
The union argued that for any testing to be justified, there must be reasonable cause. There was no sign of impairment in Degg’s case, and as a result post-incident testing was unlawful.
The union argued the issues of safety and personal rights must be balanced.
Arbitrator Christopher Albertyn argued the employer’s interest in the safety of employees trumps the individual employee’s right not to be tested in trying to determine the cause of an incident. However, the incident in question was plainly the result of Degg’s carelessness.
“The accident had a credible explanation for Mr. Degg’s failure to see the parked vehicle behind him, so the need to exclude drug or alcohol impairment was not necessary,” Albertyn said, referencing Degg’s failure to turn around and look out his rear window or ask for assistance from one of his coworkers.
Degg’s grievance was upheld. The union’s policy grievance did not find any defect in the employer’s drug and alcohol policy and was upheld only to the extent it dealt with the particular circumstances of Degg’s case.
The remedy was referred back to the parties for determination.
Reference: Jacobs Industrial and the International Brotherhood of Electrical Workers (IBEW) Local 353. Christopher Albertyn — arbitrator. Roy C. Filion for the employer, Craig Flood for the union. Jan. 7, 2016.
