View cases - Stewart McKelvey

- 26 -C. Summary Observations on the Extant Jurisprudence[51] The above analysis undermines the union’s position that arbitrators inCanada have overwhelmingly rejected mandatory, random and unannounced drug andalcohol testing and that sufficient evidence of a pre-existing drug or alcohol problem inthe workplace is therefore a pre-condition to the enforceability of such policies, unlessthe workplace qualifies as ultra-dangerous. Having regard only to the arbitraljurisprudence discussed above, it is safe to conclude that, on balance, arbitrators haverejected the need to adduce such evidence in cases where the employer is able to establishthat the workplace is inherently dangerous. It is true that the early jurisprudence revealsan antipathy towards drug and alcohol testing in the workplace and, in particular, to drugtesting: e.g., Esso Petroleum Canada v. Communications, Energy & Paperworkers’Union, Local 614, [1994] B.C.A.A.A. No. 244, 56 L.A.C. (4 th ) 440 (J.D. McAlpine,Chair). Random alcohol testing, however, gained early acceptance once testing wasrestricted to employees holding safety sensitive positions and the testing would be bybreathalyser. This left for consideration the pivotal question whether the workplace inquestion fell within the “highly” or “inherently” dangerous category. Employers involvedin the production and refining of oil products or chemicals, or in the mining and forestrysectors of the economy, have been able to persuade arbitrators and arbitration panels thatsuch operations so qualify and usually without adducing evidence of an existing alcoholproblem in the workplace. By contrast, there has been a resistance to classifying truckingoperations as inherently dangerous.2011 NBCA 58 (CanLII)[52] As matter of policy, this Court must decide whether an employer is underan obligation to demonstrate sufficient evidence of an alcohol problem in the workplacebefore adopting a policy requiring mandatory random alcohol testing. In my view, thebalancing of interests approach which has developed in the arbitral jurisprudence andwhich is being applied in the context of mandatory random alcohol testing warrantsapprobation. Evidence of an existing alcohol problem in the workplace is unnecessaryonce the employer’s work environment is classified as inherently dangerous. Not only isthe object and effect of such a testing policy to protect the safety interests of those