View cases - Stewart McKelvey

- 27 -workers whose performance may be impaired by alcohol, but also the safety interests oftheir co-workers and the greater public. Potential damage to the employer’s property andthat of the public and the environment adds yet a further dimension to the problem andthe justification for random testing. As is evident, the true question is whether theemployer’s workplace falls within the category of inherently dangerous. It is to that issueI now turn.D. Is Irving’s kraft mill an inherently dangerous operation?[53] It has been argued that the arbitration board made a palpable andoverriding error in concluding that the kraft mill did not fall within the classification ofultra-dangerous operation. The reality is that in law there is no such classification. Hence,the question we must address is whether the mill operations can be classified asinherently dangerous. In my view, the arbitration board’s finding that the kraft paper millpresented itself as a “dangerous work environment” satisfies the test of inherentlydangerous and, therefore, Irving did not have to adduce evidence of an existing alcoholproblem in the workplace, let alone sufficient evidence of a “significant problem” in theworkplace.2011 NBCA 58 (CanLII)[54] For greater certainty, I want to focus briefly on the reality that chemicalplants and railway operations have been classified as inherently dangerous workenvironments, thereby dispensing with the need to adduce evidence of an existing alcoholproblem in the workplace in order to justify the adoption of a random alcohol testingpolicy. Yet, as noted earlier, the arbitration board held that Irving’s kraft mill could notbe equated with a railway operation or a chemical plant. In my respectful view thisfinding is unreasonable. Let me explain.[55] To the extent that a railway company, which transports goods throughoutthe country, is entitled to adopt a random alcohol testing policy without evidence of anexisting alcohol problem in the workplace, one would think that a kraft paper mill wouldprovide an equally dangerous workplace. If a railway company which transports