Yesterday’s arbitration panel ruling that random drug and alcohol testing by Suncor Energy Inc. would be unreasonable sends a clear signal -- and is consistent with previous, similar rulings -- that employers face a difficult hurdle if they want to impose such testing on their workplaces, says a law professor.
This case is far from over, Eric Adams, an employment and labour lawyer at the University of Alberta’s faculty of law, told the Daily Oil Bulletin.
“We could be looking at more court cases over the next couple of years, trying to find the right balance between safety and privacy in the workplace,” said Adams.
A majority of a three-member arbitration panel found that the random drug and alcohol testing of all employees at a Suncor site near Fort McMurray would violate the fundamental rights of workers to privacy, respect and dignity in the workplace and cannot be justified in the circumstances.
Suncor is disappointed with the decision and will be appealing, said Sneh Seetal, Suncor spokesperson, in an email.
“In our view, and based on the evidence we presented, this is an unreasonable outcome. In fact, one arbitrator, David Laird [Suncor’s nominee on the panel], expressed that he had never seen stronger evidence in support of random drug and alcohol testing.”
“The driver behind the inclusion of random testing in our already-comprehensive safety program is so our workers go home safely to their loved ones at the end of each day,” said Seetal. “It’s about workplace safety. And we have a duty to protect the safety of the public, workers and the environment.”
She said Suncor believes a respectful and random program that balances employee’s rights to privacy and the company’s obligation to maintain a safe worksite is the next step to reducing the risks associated with alcohol and drugs on its worksite.
But the panel found that 14 positive alcohol tests over a nine-year period in a workforce Suncor’s size does not establish that there is a significant problem, or legitimate safety risk, with respect to the use of alcohol at the oilsands operations.
“The evidence offered does not provide to the employer sufficient basis on which to justify random alcohol testing on the balancing of interests approach. Neither have we found that there is a culture with respect to alcohol which is out-of-control, or which would justify the imposition of random alcohol testing. The imposition of a random alcohol testing policy by this employer is therefore an unreasonable exercise of management rights,” it said.
The panel’s ruling resulted from a grievance filed on behalf of union members, now represented by Unifor Local 707A, at Suncor’s oilsands operations.
In June 2012, Suncor announced intentions to enact random drug and alcohol testing for employees at its oilsands mine and Firebag projects near Fort McMurray. Suncor has said its intention behind drug testing was to reduce risk in the workplace.
The testing was to take effect on October 15 but the union was successful in calling for an injunction to allow the company’s proposed program to pass through arbitration before any implementation could occur.
In November 2012, the Alberta Court of Appeal dismissed Suncor’s appeal of an Oct. 12 Court of Queen’s Bench-issued injunction to stop Suncor from enacting random testing among 3,400 workers, then represented by the Communications, Energy and Paperworkers (CEP) Union of Canada.
An arbitration panel began hearing arguments and evidence in January 2013. The hearings were concluded in late-November 2013.
Adams said the issue is also still alive because the arbitration board is not saying it’s impossible to have randomized drug testing, they are simply saying there isn’t the evidence put forward by Suncor in this particular case to justify randomized drug testing so there is still going to be an opening -- and the Supreme Court of Canada has left an opening -- where an employer can demonstrate a significant-enough problem that the response of randomized testing may, in fact, be lawful.
In addition to appealing, there are also other legal avenues available to Suncor, he said.
The company could negotiate a new regime of testing with the union and put that bargain in the collective agreement, Adams said, adding this was suggested by the arbitration board.
He said the board also suggested Suncor could prove it needed some kinds of randomized testing by proving drugs and alcohol were a problem with unionized employees specifically instead of the workforce in general. The company could do this by better organizing its evidence, said Adams.
Suncor has said there was a total of 115 positive employee alcohol and drug tests in the oilsands operations between January 1, 2009, and December 31, 2012.
According to Seetal, investigations into seven fatalities at Suncor since 2000 determined that at least three of the workers who died were under the influence of alcohol or drugs at the time of their deaths.
But Gil McGowan, president of the Alberta Federation of Labour (AFL), countered that those were construction contractors who died and long-term operations workers have an incredibly good record of workplace health and safety, so it doesn’t make sense for the company to impose a random testing upon those employees.
The arbitration board also suggested applying the tests only in the first year or two of employment if there was a problem with new hires, he added.
Legally, workers are subject to testing before they are hired, before they enter a work site, if they are suspected of being impaired and if they have an accident at work.
“That’s one of the things about this case, is that it’s not that there are no drug tests. There’s a ton of drug tests in the oilpatch,” said Adams, adding the question is about random testing.
The board also found, “Under Suncor’s policy, an employee who tests positive for marijuana indicating that the employee may have used marijuana on her or his own time, days before the test while on vacation, may be subject to discipline or dismissal based on the potential risk from after effects of the marijuana, and there are issues with whether or not those risks can be assessed through urinalysis as a testing method.”
Random drug testing of workers that have done nothing wrong is a violation of their basic rights, said Roland Lefort, president of Unifor Local 707A, in a press release. “We will work with Suncor to achieve the highest possible levels of workplace safety with education and prevention, not invasive medical procedures.”
Unifor was founded in 2013 with the merging of the Canadian Auto Workers and the Communications, Energy and Paperworkers unions. With more than 300,000 members, Unifor is Canada’s largest union in the private sector.
As of July 2013, the Unifor union represented 3,383 workers employed at Suncor’s oilsands operations where there are a further 2,963 non-represented employees.
There can also be up to 3,400 contractor employees working at the operations at any one time.
Consequently, there can be over 9,700 employees -- of three different types -- working in the oilsands operations. Of these, 34%, or just over one third are represented by Unifor.
“There is no evidence that random testing improves safety, which is why Unifor is committed to more reliable methods to keep our members safe on the job while respecting the dignity of our members,” said Jerry Dias, Unifor’s national president, in a release.
A PDF version of the ruling can be downloaded here.
Daily Oil Bulletin
