Court of Appeal Decision of the Week

Mandatory Drug Testing

Case: Hibernia Platform Employers’ Organization v Communications, Energy and Paperworkers Union (Unifor, Local 2121), 2018 NLCA 45 (CanLII)

Keywords: Helicopter; unauthorized drugs; “significant incident”

Synopsis:

The collective agreement between Hibernia Platform Employers’ Organization (“Employer”) and the Communications, Energy and Paperworkers Union of Canada, Local 2121 (“Union”) incorporates a drug and alcohol policy. Following an incident relating to helicopter safety on the Hibernia offshore oil platform, the Employer undertakes an investigation: eight employees are asked to submit to drug testing. One is terminated after testing positive for unauthorized drugs.

The policy provides that when a “significant incident” occurs, the Employer may require an investigation, including drug testing. The incident in this case: mistakes in loading baggage onto the helicopter. The parties agree that a helicopter manifest error is a “significant incident”.

The Union brings a grievance and an Arbitration Board reinstates the employee on the basis that the drug test did not comply with the policy. The termination grievance is allowed. The Employer’s application for judicial review is dismissed, the Applications Judge concluding the Arbitration Board’s decision was not unreasonable. The Court of Appeal dismisses a further appeal.

Importance:

Citing Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (CanLII), the Court of Appeal confirmed the standard of review applicable to the Arbitration Board’s decision is reasonableness.

Regarding the termination grievance, the Arbitration Board stated as follows:

…The Board concludes that the alcohol and drug test of the Grievor was ordered without consideration of the explanation that errors in process had not been corrected, without an explanation from the Grievor, and without sufficient reason to link the Grievor’s actions to the incident.  There was not sufficient information to establish a possible link between substance use by the Grievor and the cause of the incident.  It was not appropriate to order the test in the exercise of managerial discretion.  Therefore, the test did not comply with section 5.0(2) of the Alcohol and Drug Policy, based on the language of the Policy and the requirements of the arbitral authorities. (See para. 5).

Here the Employer submitted the Arbitration Board’s decision was unreasonable because its interpretation of the Policy results in an interference with management’s right to order drug testing – in other words, that imposed additional requirements on the Employer. The Court of Appeal concluded that the application of the policy to order drug testing would require an individualized assessment. For the Court, the Board was not suggesting that an investigation must be complete or extensive before the testing can be ordered. Rather, it was suggesting that the extent of the investigation necessary depends on the particular circumstances of a case:

While drug or alcohol testing is an investigative tool available to management, it was not unreasonable for the Board to interpret the Policy so as to require management to take initial steps to be satisfied that ordering certain employees to undergo drug or alcohol testing would, indeed, be indicated (See para. 20).

The Court of Appeal dismissed the Employer’s appeal. Both the Arbitration Board and the Applications Judge gave comprehensive reasons for their decisions. The decision allowing the termination grievance was reasonable. (See para. 23).

Counsel for the Appellant: Stephan Penney and Ruth Trask (Stewart McKelvey, St. John’s)

Counsel for the Respondent: Ian Patey (O’Dea Earle, St. John’s)

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Posted: Wednesday, August 08, 2018