'An employer cannot rely on evidence it has obtained in contravention of an employee's reasonable expectation of privacy'
HR professionals overseeing safety-sensitive workforces should note a new arbitral precedent limiting what random drug tests can prove in discipline cases.
An arbitrator ordered Toronto Transit Commission (TTC) to reinstate a Wheel-Trans operator dismissed over a positive cannabis test
Arbitrator Laura Trachuk ruled that TTC's random testing program breaches the collective agreement and the Canadian Charter of Rights and Freedoms.
Suspension after positive result
Bruce Crosby was hired by the TTC in 1995 and worked as a Wheel-Trans Operator, a safety-sensitive role, when randomly selected for testing on Aug. 21, 2017. His breathalyzer result was immediately negative, but his oral fluid drug test later came back non-compliant for cannabis.
Crosby worked his remaining shifts until Aug. 24, when TTC learned of the result. He was suspended with pay and met with TTC and Amalgamated Transit Union (ATU) Local 113 on Aug. 24 and Sept. 6.
TTC terminated his employment on Sept. 6, 2017, concluding he had "attended work unfit for duty on Aug. 21, 2017 contrary to TTC's Fitness for Duty Policy and your Conditions of Employment." A second sample portion, retested at his request, also confirmed non-compliance on Sept. 5. The ATU grieved, seeking to have the discipline voided and any record destroyed.
Contravention of privacy
Trachuk grounded her ruling in a companion policy award issued the same day: "I find, pursuant to the FFD Policy Award and for the same reasons, that the TTC violated the grievor's right to privacy and subjected him to an unreasonable search and seizure contrary to s. 8 of the Charter by subjecting him to random testing."
Trachuk found TTC exercised its management rights unreasonably, failing to show a general workplace drug problem under the Irving Pulp & Paper test, and failing to meet the KVP reasonableness requirements. She concluded evidence from an unjustified privacy violation is generally excluded from arbitration regardless of what it shows.
"An employer cannot rely on evidence it has obtained in contravention of an employee's reasonable expectation of privacy under the collective agreement and the Charter to prove just cause for their termination of employment," said Trachuk.
No evidence of impairment
Applying that reasoning, Trachuk found TTC had no independent evidence of impairment: no incident occurred that day, and Crosby showed no signs of impairment.
"The employer has not provided evidence of just cause to terminate the grievor's employment and the grievance must be allowed," Trachuk concluded, ordering reinstatement without loss of seniority and compensation, with damages bifurcated.
Previously, a long-haul truck driver fired after failing a random cannabis test for the second time — which he described as a one-off to get close to a woman — lost his wrongful dismissal case.
Meanwhile, earlier this year, a Quebec arbitrator ruled in favour of Air Transat’s zero-tolerance cannabis policy for flight attendants.
