Manager determined it was 'significant incident,' but worker said he was pressured into risky action
A British Columbia employer’s requirement that a worker submit to post-incident drug and alcohol testing was reasonable given the worker’s failure to follow precautionary measures and the nature of the incident, an arbitrator has ruled.
The worker was employed with DP World Canada, a company that was part of the British Columbia Maritime Employers’ Association - an association representing the industrial relations interests of companies operating in the province’s seaports – since 2019. He drove a tractor-trailer that transported containers, which was referred to as a “bomb-cart.”
The association had a drug and alcohol policy that applied to all employees of member companies. The policy had a provision for post-incident drug and alcohol testing to rule out substance use as a potential cause of a significant event. It identified “significant event” as an incident or near miss that resulted in a fatality, a significant injury, significant damage to property or equipment, a reportable environmental event or hazard, or a near miss that would likely have resulted in one of these conditions.
Under the policy, the employer was required to conduct a preliminary investigation to determine if the employee’s condition was a reasonable line of inquiry and testing would assist the investigation.
Workplace incident caused damage to equipment
On May 22, 2022, the worker was driving his bomb-cart and encountered another bomb-cart stopped in front of him. He received a direction over the radio to turn left and pass it. He noticed that the turn would be tight and he didn’t know if the individual on the radio was in a position to provide safe direction, but he proceeded anyway. He was also aware that safe operation of his vehicle took priority over any radio directions.
As the worker turned his vehicle, his trailer struck a protective part on a rubber tire gantry crane used to stack shipping containers. The shift manager began a post-incident investigation under the drug and alcohol policy, determining that the worker wasn’t injured and taking photos of the scene. The manager spoke with other employees, but none saw the accident. He also had the damage assessed, which was determined to cost more than $2,500 with the gantry crane being out of service while it was repaired.
The worker provided a written statement with a union representative present. He said that he was driving the bomb-cart when he turned and hit the gantry crane, someone told him to go around another stopped bomb-cart, and he felt pressure to make the turn even though he knew it would be tight and he should have waited. He couldn’t identify who had told him on the radio to make the turn or why he failed to wait.
The manager couldn’t find anyone who could support the worker’s claim about the radio direction but felt that it didn’t matter because it was a common instruction and the worker was ultimately responsible for making a safe turn and checking his side mirrors.
Checklist for post-incident testing
The manager went through the checklist for a significant event and determined that the worker met three of the conditions: he failed to adhere to a safety rule, practice or procedure; he failed to use required tools or equipment properly, which contributed to the hear; and he failed to recognize a hazard that a competent employee would reasonably be expected to recognize and control. In the section for ruling out other influences, the manager checked one – other influences outside the worker’s control, referring to the fact the worker said he felt pressured to make the turn.
The manager determined that the incident was an uncommon event with significant damage, so it met the threshold for post-incident substance testing. He notified the worker that he would be tested, but the worker refused.
The union grieved the requirement that the worker be tested, arguing that the incident wasn’t a significant event and DP World Canada’s preliminary investigation should have ruled out the worker’s condition as a factor, in light of the outside influences that pressured the worker to attempt the turn.
The arbitrator found that the manager reasonably concluded that the accident was unusual in the context of day-to-day operations, and the estimated repair costs and operational impact provided “a sufficient objective basis to conclude that the accident fell within the range of what comprises a significant event, within the meaning of the policy.”
Preliminary investigation followed drug and alcohol policy
The arbitrator also found that the manager’s preliminary investigation was in accordance with the policy. The investigation included consideration of the worker’s training and experience, the circumstances of the accident, and the worker’s account of the event, and the manager’s primary concern was the fact that the worker was unable to explain why he didn’t hold back and wait before risking the tight turn, given his training in his role and the opportunity he had to take precautionary steps.
The arbitrator noted that it didn’t matter that the worker didn’t appear impaired, as that wasn’t a requirement for a post-incident test.
“In this context, the appropriateness of testing is generally assessed in terms of its utility as an investigative tool when balanced against the consequent privacy intrusion,” said the arbitrator.
The arbitrator determined that it was reasonable for DP World Canada to require the worker to undergo post-incident substance testing under the policy.
