BC Labour Relations Board waters down Irving Pulp

May 22, 2014 Stringer LLP Conferences, Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, International HR Law, Privacy and Security, Recruiting and Hiring, Union Relations

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Employers are still wrestling with the consequences of the Supreme Court’s landmark decision on the random drug and alcohol testing of employees in Irving Pulp. While the initial reaction from arbitrators appears to suggest that Irving Pulp made the likelihood of such a program surviving a challenge minimal, a decision out of the British Columbia Labour Relations Board indicates that there may still be room in Canada for these sorts of programs.

Teck Coal v USW

The employer in this case implemented a random drug and alcohol testing program for employees across its mining operations in British Columbia. Approximately a month prior to the landmark Supreme Court decision in Irving Pulp, an arbitrator refused the union’s motion to stay the implementation of the program pending a decision on its validity. After the decision in Irving Pulp was released, the arbitrator refused to reconsider his decision not to suspend the testing program, and the Union applied to the Board for an order quashing that decision.

Under BC law the Board’s jurisdiction to overturn the arbitrator’s ruling is very limited, and concerned with mostly procedural matters. The Board found that the union’s complaints met none of the criteria for review.

That said, the Board had some interesting insights into the state of the law of random drug and alcohol testing following Irving Pulp.

Irving Pulp has been used by unions to argue that employers are prohibited from implementing drug and alcohol testing programs in all but the clearest of circumstances. Indeed, that is explicitly what the union argued in this case.

The Board disagreed.

The Board determined that the Irving Pulp case dealt primarily with the degree of scrutiny to which the arbitrator’s decision was subject. In effect, this meant that the arbitrator’s initial decision, that the random drug testing program involved in Irving Pulp did not meet the requirements of the collective agreement, was within the range of what a reasonable arbitrator would find, and did not even represent the Court’s opinion as to whether it was the correct decision.

The Board rejected the Union’s position that the Supreme Court in Irving Pulp was giving direction on the appropriate legal factors to consider in assessing a random testing policy. Instead, the Board held that the Court’s opinion could be interpreted only as saying that, on the particular facts of the Irving Pulp case, the arbitrator`s finding was reasonable.

What employers should know

Irving Pulp was interpreted in Alberta in a recent case as standing for the proposition that only in the most clear and unambiguous of circumstances can a unilaterally imposed random drug and alcohol testing program be upheld. The decision of the Board in Teck Coal indicates that this interpretation of is not universally accepted and may overstate the breadth of the Supreme Court’s decision.

Teck Coal is only an interim decision, and the Board only had jurisdiction to review a limited aspect of the arbitrator’s award. That being said, this case shows that Irving Pulp may not be the curtain call for random drug and alcohol testing programs that unions have heralded it as being.

Employers must still be diligent about creating a strong factual case to demonstrate that random drug and alcohol testing is justified in their workplace, and even then will face significant opposition from unions and skepticism from arbitrators. The arbitral jurisprudence on such programs does not favor their continued implementation.

However, the decision of the British Columbia Labour Relations Board in this case shows that the Court’s edict in Irving Pulp is perhaps not as restrictive as early case law suggests.

At the 2014 Ontario Employment Law Conference, on June 10, employment lawyer Jeffrey Murray, will be discussing,

In what circumstances random screening may be lawful
What types of drug and alcohol testing are permissible, and
To what extent the rules differ between union and non-union workplaces.

Don’t miss the opportunity to learn the latest! At the Ontario Employment Law conference, you will learn more about the Supreme Court of Canada decision in Irving Oil, regarding the rights of employers and employees when it comes to drug and alcohol testing in the workplace. Register Today!

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Employment and Labour lawyers at Stringer LLP

Stringer LLP is a leader in Canadian HR law. For over 50 years, they have taken a client-centered approach to responsive service, representing employers with labour relations and employment problems. Their firm’s practice covers a broad spectrum of HR law, including employment law, occupational health & safety, labour relations and arbitration, human rights, workers’ compensation, pay equity and corporate immigration, as well as issues under the Accessibility for Ontarians with Disabilities Act. They also provide training, seminars and conferences on the above topics. Read more