In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, the Ontario Superior Court recently rendered its decision dismissing the Amalgamated Transit Union, Local 113’s application for an interlocutory injunction restraining the implementation of a policy permitting random drug and alcohol testing of its members. The Union requested that the injunction be granted pending the completion of the arbitration of a policy grievance. The Toronto Transit Commission approved the implementation of a “Fitness for Duty Policy”, designed to ensure the health and safety of its employees, customers and members of the public. The Policy requires that TTC employees be mentally and physically fit to perform their tasks, without any limitations, including from the use of drugs or alcohol.
To further this end, the Policy requires drug and alcohol testing of employees in safety-sensitive and other specified positions,
1. Where there is reasonable cause to believe that the employee is unfit for duty due to alcohol or drug use;
2. As part of a full investigation into a significant work-related accident or incident;
3. Where an employee is returning to duty after violating the Policy;
4. Where an employee is returning to duty after treatment for drug or alcohol abuse; and
5. As a final condition of appointment to a safety-sensitive position.
The Policy did not expressly provide for random testing when it was introduced. However, the TTC advised the Union that it was reserving its right to perform such testing, and later amended the Policy accordingly.
Before the Policy came into effect, the Union filed a policy grievance, alleging that the entire Policy was contrary to the collective agreement.
The grievance was referred to arbitration, which commenced in March 2011. As of the Ontario Superior Court of Justice’s hearing of the Union’s application for an injunction in earlier this year, the TTC had not even commenced its case.
The Court dismissed the Union’s application, holding that it failed to meet the test for an injunction.
Writing for the Court, Justice Marrocco agreed with the Union that there was a serious issue to be tried in the arbitration: the arbitrator is tasked with applying the principles set out in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, in which the Supreme Court held that employers in a safety sensitive, unionized workplace must demonstrate a general drug or alcohol problem in the workplace to justify random drug and alcohol testing policies. Justice Marrocco disagreed, however, that the Union or its members would suffer irreparable harm if an injunction was not granted, noting that monetary damages would provide sufficient compensation to any TTC employees suffering from breaches of privacy or psychological harm arising from the testing and potential positive results.
The Court dismissed the Union’s application on this basis.
Justice Marrocco nonetheless addressed the third criterion in the test for an injunction, namely whether the balance of convenience favoured granting the relief. He suggested that if random drug and alcohol testing is allowed to proceed, it would increase the likelihood that an employee prone to drug and/or alcohol use and working in a safety-sensitive position will either be detected through the testing, or that his or her drug and/or alcohol use will be deterred by the possibility of being subjected to random testing, both positive factors in the interest of public safety.
The Court concluded that the balance of convenience favoured the TTC’s position.
While the TTC successfully defended its Policy from an injunction, it remains to be seen whether it will prevail in the upcoming arbitration.
It will also be interesting to see how this case is applied to other employers. Employers seeking to implement random drug and alcohol testing must not only have safety-sensitive workplaces, but also demonstrable evidence of a problem with substance abuse in the workplace. The question of what constitutes a general problem with substance abuse in the workplace is currently before the courts in Alberta and will undoubtedly come before the Supreme Court of Canada in due course.
Lessons for Employees
As the Court will consider the reasonableness of random drug and alcohol testing in the workplace, employees who seek an opinion on its’ validity should be sure to objectively inform an experienced Employment Lawyer of whether the workplace is safety-sensitive, and whether, to their knowledge, there is substance abuse in the workplace. Employees should realize that while they may be aware of whether their workplace is safety-sensitive, they may not be aware of whether there is substance abuse in the workplace. An Employment Lawyer should be able to identify these issues including the additional information that may be required to provide a comprehensive opinion.
Lessons for Employers
Employers should remember that it is not every workplace where random drug and alcohol testing will be lawfully permitted. If there is a problem with drugs and alcohol in the workplace, incidents should be carefully documented prior to a determination of whether to implement random drug and alcohol testing. An Employment Lawyer can be helpful in advising whether based on the nature of the workplace and the occurrences of drugs and alcohol in the workplace, random drug and alcohol testing can be lawfully implemented without breaching an employee’s rights.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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