The validity of drug testing in the workplace has been the subject of extensive case law over the last several years. Generally unilaterally implemented random drug testing in a unionized workplace has been found to be impermissible except in very limited circumstances, including where there is a demonstrated drug use problem in a dangerous workplace or other “extreme circumstances”. Those cases have also emphasized that a union and employer are able to negotiate drug testing policies applicable to employees. A recent decision from a Quebec arbitration tribunal discusses the importance of freely negotiated policies in justifying an employer imposing random testing.
The arbitration tribunal was asked to hear a grievance contesting the dismissal of the grievor, a seaman, from a company with a fleet of ships. In May 2018, the grievor had boarded a oil tanker docked in Montreal for a few days before heading to the UK with a cargo of oil. During the layover, drug testing was carried out without prior notice to the grievor. It was noted during the hearing that a policy, incorporated by reference into the collective agreement, was implemented in the workplace. The policy expressly provided that testing would be carried out in a random manner and without notice.
The grievor was dismissed after he failed the test. The union contested the decision and filed a grievance.
The main issues were whether requiring the grievor to undergo random screening unlawfully infringed his right to privacy and whether his dismissal was justified.
The union’s position was that only the situations identified by the Supreme Court of Canada in Irving regarding screening tests could constitute a reasonable limit to the grievor’s fundamental rights.
The arbitrator dismissed the union’s argument by stating that in the Irving case, the Supreme Court of Canada limited itself to ruling on the validity of an employer’s policy that had not been negotiated between the parties. An arbitrator should give special consideration to what the parties have freely negotiated. In the case at hand, the union had consented to the employer’s policy, which was incorporated into the collective agreement.
The employer justified the screening tests based on the fact that the company was contractually bound to the oil companies and had numerous environmental protection obligations. The ships were in fact transporting large quantities of oil and fuel, and environmental risks existed. Further, the employer had to satisfy its health and safety obligations to all of its employees, such as in terms of the ever-present risk of fire on the vessel. Based on the evidence, the arbitrator found that the work of a seaman involved serious risks to their health and safety.
The arbitrator also found that the employer’s concerns about the possible seizure of its vessels for transporting drugs were well-founded. On this issue, the arbitrator found that in the field of navigation, and especially when it involves oil tankers, constitutes extreme circumstances that may justify implementing a random alcohol or drug testing policy, even if such policies infringe the fundamental rights of employees. The employer had to ensure in advance that all crew members are able to respond quickly in the case of an emergency, and could not take any risk in this respect. Further, the employer’s objective to deter the consumption of alcohol or drugs could not be achieved if the testing was not carried out at random. For all of these reasons and especially, as the arbitrator noted, given that the union agreed with the random screening policy, the infringement of the grievor’s fundamental rights was justified.
As for the grievor’s dismissal, given that the collective agreement provided that any breach due to testing positive on a random screening test would result in immediate dismissal, it appeared clear that the parties had agreed not to apply the usual principle of progressive discipline. The arbitrator denied the grievance and upheld the employer’s decision to dismiss the grievor.
This arbitration tribunal decision must not be interpreted by employers as giving them the right to put in place random testing across the board. It nevertheless shows that arbitration tribunals may be willing to uphold a random testing policies in limited circumstances where the employer and union have negotiated and agreed to it as part of the collective agreement. Even if a policy is upheld, employers must still be mindful of their accommodation obligations under human rights legislation, which may be triggered by a positive test result after a test under an enforceable policy.
If you have questions about drug and alcohol testing, please contact the author or your regular Fasken lawyer.