A unilaterally imposed policy mandating random alcohol testing with disciplinary consequences for either a failure to take the test or for a positive test result is unjustified — even in a dangerous workplace — without of evidence of the requisite safety concerns that would justify such random testing, the Supreme Court of Canada has ruled.
Irving Pulp & Paper operates a pulp mill in New Brunswick. In 2006, it unilaterally adopted a workplace policy that mandated random alcohol testing of employees that held safety sensitive positions in the mill. Random testing was achieved by using an off-site computer which, in any 12-month period, randomly selected 10 per cent of people on a list of employees who held safety sensitive positions. The policy provided that a positive test for alcohol could give rise to significant disciplinary consequences, including dismissal and further provided that a failure to submit to testing was grounds for immediate dismissal.
An Irving employee who held a safety sensitive position was randomly tested and, although the test revealed he had a blood alcohol level of zero, a policy grievance was filed challenging the without-cause aspect of the alcohol testing policy. The grievance proceeded to arbitration. A majority of the arbitration board determined Irving had established the mill was a dangerous work environment but had failed to demonstrate it was within the ultra-dangerous category of workplaces at which random testing might be permissible. Accordingly, the board went on to consider the evidence of alcohol use in the workplace and found there was insufficient evidence of alcohol use to justify the testing policy on the basis that there was a safety risk that outweighed an employee’s right to privacy. The board found the policy to be unreasonable and unjustified.