By Mark Bout
A British Columbia arbitrator has struck down a mining company’s mandatory random drug and alcohol testing program, ruling that it is an unreasonable exercise of management rights given the necessity to balance the safety and privacy interests of the parties.
Following the Supreme Court of Canada’s decision in Irving Pulp & Paper, arbitrator John Kinzie ruled in Teck Coal Ltd. (Fording Coal and Elkview Operations) v. the United Steelworkers, Locals 7884 and 9346that the random testing program was not justified.
The decision is a disappointing one for many employers in British Columbia. Teck Coal will no longer be permitted to engage in random drug and alcohol testing of their workers at their British Columbia mining locations, barring a successful appeal of the decision.
The decision is the latest development in a lengthy legal history concerning random drug and alcohol testing at Teck Coal’s various British Columbia mining locations. In December 2012, Teck Coal instituted a random testing program for drug and alcohol use by its employees. The implementation of the program was opposed by the United Steelworkers who argued the program was ineffective and an unreasonable invasion of employee privacy.
Arbitrator Colin Taylor was originally chosen to arbitrate the dispute, and in 2013 he dismissed an application from the union which sought a “stay” order to prevent the random testing program from being implemented while arbitration proceedings remained outstanding. This decision was unsuccessfully appealed to the Labour Relations Board by the union.
Since 2012, Teck Coal continued with the random testing program at its mine sites in British Columbia. This put arbitrator Kinzie (who replaced Taylor) in the rather unique position of having over five years of documented results to examine in determining the reasonableness and effectiveness of the random testing program.
In the decision, the arbitrator granted the union the order it requested. t was determined that Teck Coal was not justified in implementing the random testing program at its locations in 2012, or at any time up to the date of the hearing. This finding was based on the arbitrator’s key findings that:
•the random testing program constituted a serious privacy invasion of employees
•there was insufficient evidence of a “general” workplace problem associated with drugs and alcohol to justify that privacy intrusion.
The conclusion that random testing constitutes a serious invasion of individual privacy is not a controversial one. Interestingly, however, arbitrator Kinzie found that despite individuals working in a safety sensitive regulated industry, they did not have a diminished expectation of privacy.
The conclusion that there was no “demonstrable workplace problem” with drug and alcohol use amongst the workforce was based on the evidence put before Kinzie at the arbitration proceedings. Despite a number of current and former employees testifying about their individual struggles with drugs and alcohol, the arbitrator found that this was insufficient to establish a problem with the workforce generally. Further, the arbitrator found the employer had not produced any “hard evidence” from the years prior to the introduction of the random testing program, which linked a culture of drug and alcohol use to an increase in accidents or injuries at its mine sites.
Mark Bout is an associate at the Vancouver office of Mathews Dinsdale & Clark. He practices in all areas of workplace law, including occupational health and safety and workers compensation matters. He has represented clients before both the Provincial and Supreme Court of British Columbia. He can be reached at firstname.lastname@example.org
or (604) 638-2046.