Transit commission cites need for 'clarity' policies and procedures
The Toronto Transit Commission (TTC) board has directed the transit organization to end random drug and alcohol testing of employees, following an arbitrator's ruling that the policy was unlawful, according to a report.
TTC board chair Coun. Jamaal Myers said in a statement issued Saturday evening that staff have been directed to develop an "enhanced" policy that complies with the arbitrator's decision and industry standards, CBC News reported.
The TTC will continue duty screening measures while the new policy is developed, Myers said. "We are moving forward to ensure that the TTC remains safe and that there is clarity about how we ensure that through the TTC's policies and procedures," he said, according to the report.
The move comes after a 15-year dispute between the TTC and the Amalgamated Transit Union (ATU) Local 113 over the transit agency's testing policies.
Grievance against testing
The arbitrator's findings stem from a specific grievance involving a TTC bus operator, identified in the arbitration award as Andre Baker, who was hired into the safety-sensitive role in March 2009.
Baker was randomly selected for alcohol and drug testing on Aug. 17, 2017, under the TTC's Fit for Duty Policy. His breathalyzer test returned an immediate negative result, but the oral fluid drug test, which does not provide immediate results, later came back non-compliant for cannabis, and the TTC was notified on Aug. 23.
Baker was suspended with pay on Aug. 24 and terminated on Aug. 31, 2017, following a meeting with TTC management and a union representative. According to the termination memo cited in the award, Baker explained that he used marijuana to manage an undiagnosed sleeping disorder that he had not previously disclosed to the TTC.
Arbitrator Laura Trachuk found that the TTC's random testing program breached section 8 of the Canadian Charter of Rights and Freedoms and was an unreasonable exercise of management rights that contravened the collective agreement.
On that basis, she excluded the non-compliant test result as evidence, finding that the TTC had no other proof Baker was unfit for duty that day. "No incident occurred that day and he was not showing any signs of impairment."
Reinstatement and remaining questions
Without the excluded test result, Trachuk found the TTC could not establish, on a balance of probabilities, that Baker was unfit for duty on the day in question, and therefore had no just cause to terminate his employment. She ordered Baker reinstated without loss of seniority and compensated for his losses, with the parties agreeing to address the specific amount of compensation and any further damages in a separate process.
Marvin Alfred, President of the Amalgamated Transit Union, Local 113, previously welcomed Trachuk’s decision.
“Literally thousands of workers have been forced to undergo these unreasonable tests which were never fit for purpose. Hundreds of workers have lost their employment because they were forced to take tests that were inaccurate and unreliable. This policy has been a tragedy for the workers and their families who have been devastated because of the misguided and inappropriate use of tests,” he said in a statement back in July.
“Apart from the loss of privacy and the lives ruined by this misguided program, the public has suffered. Public dollars that could have been used for real and effective safety initiatives were instead wasted.”
