The Supreme Court of Canada recently rendered a divided decision in which it concluded that an employer’s policy imposing mandatory random alcohol testing was not justified.¹ This decision is of interest to employers in Quebec since it confirms arbitral case law on the subject.

Background

In 2006, Irving Pulp & Paper, Ltd. (“Irving” or the “employer”) unilaterally adopted a policy on the consumption of alcohol and other drugs (the “policy”). One aspect of this policy provided that over the course of a year, ten percent (10%) of employees occupying safety-sensitive positions were to be selected at random to undergo unannounced breathalyser tests. A positive test (i.e., blood alcohol concentration greater than 0.04%) would lead to severe disciplinary action, possibly including dismissal. Moreover, refusal to submit to the test would result in immediate dismissal.

The policy also provided for mandatory testing 1) if there was reasonable cause to suspect that an employee was consuming alcohol or drugs in the workplace, 2) following a workplace accident or incident in which an employee was directly involved, and 3) as part of a monitoring program for employees returning to work after voluntary treatment for substance abuse.

The grievance sought to challenge only the random alcohol testing aspect of the policy as it pertained to employees occupying safety-sensitive positions.

The decisions rendered by the courts below

In first instance, the arbitration board of New Brunswick (the “Board”), weighed the employer's interest in implementing random alcohol testing as a workplace safety measure against the violation of the employees’ right to privacy which resulted from the policy. Following its analysis, the Board allowed the grievance and concluded that random testing was not justified.

The Court of Queen's Bench set aside the Board's decision, and the Court of Appeal dismissed the appeal. The latter therefore recognized the employer's right to unilaterally impose this policy, given the dangerous nature of the workplace.

The Supreme Court decision

The Supreme Court restored the Board's decision. The issue at the heart of this case is whether unilaterally implementing a mandatory random alcohol testing policy constituted a valid exercise of the employer's management rights under the collective agreement. With regards to the exercise of the employers’ management rights, the Court pointed out that, in unionized workplaces, a policy imposed unilaterally by the employer must be reasonable and must fall within the scope of the management rights clause contained in the collective agreement. The Court added that when assessing the reasonableness of a policy that affects the employees' privacy, courts generally adopt a “balancing of interests” approach....