Previously printed in the LexisNexis Labour Notes Newsletter.
In a series of recent arbitration decisions, Arbitrator Andrew Sims and Arbitrator David McPhillips have reviewed and clarified the legal test for post-incident alcohol and drug testing.
Arbitrator McPhillips' August 26, 2020 decision in Vancouver Shipyards Co. v. Construction Maintenance and Allied Workers, Local 506 Marine and Shipbuilders (JS Grievance)1 is the latest in a series of decisions, following Arbitrator Sims' decision in Interfor Acorn v. United Steelworkers, Local 2009 (Perez Grievance)2 and Arbitrator McPhillips' decision in Vancouver Shipyards Co. v. Construction Maintenance and Allied Workers, Local 506 Marine and Shipbuilders (Bohun Grievance).3
The Vancouver Shipyards (JS Grievance) decision is summarized here.
The Union grieved the employer's requirement for the grievor to undergo a post-incident alcohol and drug test following an incident which occurred on July 25, 2019. The grievor was instructed to go into a building to pick up scaffolding material with his forklift. He did not honk his horn when entering the building which would have been "best practice".
There was another employee, DW, working in the area and grinding large lugs while wearing full personal protective equipment, which included ear coverings. The grievor tried to get the attention of DW by yelling, "Hey, behind you." DW stated that he was working directly on the other side of the load the grievor had approached. DW also claimed that he was directly in the line of the fork lift, which put him in a "pinch point".
The grievor's version of the incident was that he stopped the fork lift in front of the load and waited for DW to stop grinding so he could get his attention. He asserted there was a large yellow tool box directly in line with him (where DW claims he was standing) and he observed DW, who was off to the right at a work bench which was about 3 to 4 feet away from the right end of his load. The grievor said he had not proceeded under the load at this point and DW was not in a pinch point and never in any real danger. The grievor claimed that after alerting DW to his presence, he proceeded to drive under the load and lifted the rack up a very short distance and then backed away slowly as is his normal practice in those situations.
The decision to conduct an alcohol and drug test following an incident requires an investigation considering: (a) the threshold significance of the incident required to justify testing; (b) the degree of inquiry necessary before the decision to test is made; and (c) the link between the employee in question and the incident necessary to justify the testing.
Significance of incident
Arbitrator McPhillips held that Arbitrator Sims' analysis in Interfor Acorn of what constitutes a significant event is helpful.
According to Arbitrator Sims, a significant event requires more than just an incident occurring which needs to be investigated. Rather, there must also be a level of some consequence in order to justify an alcohol and drug test because the testing involves a serious invasion of privacy. There is a need for some threshold level of risk or harm or both to ensure proportionality between an individual's right to privacy and the need for a safe work environment for all employees. Arbitrator Sims added that this is significantly above "not trivial" or "inconsequential" and "the incident must be special, remarkable, consequential, important [and] needs not be catastrophic, but it needs to be substantial".
Arbitrator McPhillips held that the "requirement for the event to be a serious one is to avoid the result that testing would become commonplace and always could be justified once any safety incident [has] occurred". He cautioned that "would lead to testing for even trivial incidents and completely eliminate the requirement of a true balancing of interests between individual privacy rights and the need for safety".
With respect to determining whether a "near miss" was significant, Arbitrator McPhillips quoted Arbitrator Sims in Interfor Acorn: "It is well established that incidents must be looked at, and decisions to test made, on a case-by-case basis. Using actual damage, assessed of its dollar value alone, can be too restrictive. In assessing an incident, management is entitled, reasonably and objectively, to assess the degree of risk involved." He also referred to Arbitrator Sims' observation that there is no room for "worst case scenario" or "remote possibility" justifications" and his statement to the following effect: "Any near miss must involve a realistic conclusion that serious damage almost occurred. The same caution applies to any testing justified more by risk of harm than actual harm itself."
Degree of inquiry
Arbitrator McPhillips held that "the jurisprudence is clear that the requirement for an objective and thorough investigation leading to a reasoned decision to test is a critical component in the balancing of the competing interests of an individual's privacy and safety in the workplace".
Management is, however, entitled to some deference with respect to whether it made a reasonable decision in requiring a post-incident test because such decisions are often made in a very time-sensitive environment and generally under significant pressure. This was made clear by Arbitrator McPhillips in his earlier decision in Vancouver Shipyards (Bohun).
The judgment as to what amounts to a significant incident cannot be reduced to an algorithm, tick-the-box checklist or flow chart which yields an unassailable conclusion. Any concept of when testing is justified must necessarily co-exist with a parallel concept of when testing is not justified. These points were made by Arbitrator Sims in the Interfor Acorn decision.
With respect to the actual use of a checklist on an investigation form, Arbitrator McPhillips took no issue in Vancouver Shipyards (Bohun) with the employer's use of such a checklist in determining whether or not to test the grievor because this was more than a "mechanistic check-all-the-boxes approach".
Link between employee and incident
According to Arbitrator McPhillips in Vancouver Shipyards (Bohun), in order to establish a reasonable line of inquiry, there is a requirement to establish a link between the employee in question and the incident as follows: did the employee appear to be involved and in some way responsible, either by himself or with others, for causing the accident or incident?
Arbitrator Sims in Interfor Acorn took a more restrictive approach and concluded that there may be factors which make testing appropriate, such as the magnitude of the harm, combined on occasion with statutory or other obligations to report the incident or its cause to third parties. Short of that, however, Arbitrator Sims suggested that there needs to be some sufficient aberrant, unexplained conduct which sufficiently raises the probability that the incident was due to something beyond human error alone.
In contrast, Arbitrator McPhillips in Vancouver Shipyards (Bohun) rejected human error as being a valid defence to an incident and a subsequent decision to test because this would mean that an employee, who was actually under the influence of alcohol or drugs but did not show any signs of impairment, could avoid alcohol or drug testing by simply stating, "I made a mistake. Sorry."
This difference in opinion between Arbitrator Sims and Arbitrator McPhillips remains a live issue and will likely have to be addressed in future decisions.
In the Vancouver Shipyards (JS Grievance) decision, based on all of the evidence before him, Arbitrator McPhillips concluded that the employer did not demonstrate that the incident was serious enough to raise it to the level of such a significant event (creation of a major risk of injury) that it justified an invasion of the grievor's privacy.
Arbitrator McPhillips held that even if a significant incident was made out, the employer's investigation was flawed and the employer did not engage in a sufficient degree of inquiry. He held, "[T]he jurisprudence is clear that the requirement for an objective and thorough investigation leading to a reasoned decision to test is a critical component in the balancing of the competing interests of an individual's privacy and safety in the workplace."
In this case, the employer considered extraneous factors, such as previous incidents involving the grievor's driving of the forklift, the fact that the grievor was "unapologetic and confrontational" and the perception that the grievor had refused to accept responsibility. Although those factors would have been appropriate in the issuance of discipline, they were not appropriate to include in the assessment of the severity of the incident for the purposes of conducting an alcohol and drug test.
Further, there were errors in what was recorded on the employer's checklist and also a failure to appropriately follow up and ask for clarification of some of the grievor's responses in order to be certain that the employer had a complete understanding of the grievor's version of events.
As a result, Arbitrator McPhillips concluded that the investigation undertaken by the employer was not sufficient to establish an alcohol and drug test as being a reasonable line of inquiry.
The grievance was upheld.
These recent decisions regarding the legal test for post-incident alcohol and drug testing serve as a reminder to employers that each element of the applicable legal test must be assessed as part of the employer's investigation into an incident and determination of whether testing is warranted in the circumstances.
These decisions also provide an opportunity for employers to review their investigation forms, including checklists, to ensure they sufficiently address each element of the legal test.
1. Vancouver Shipyards Co. v. Construction Maintenance and Allied Workers, Local 506 Marine and Shipbuilders (JS Grievance), unreported: August 26, 2020 (McPhillips).
2. Interfor Acorn v. United Steelworkers, Local 2009 (Perez Grievance),  B.C.C.A.A.A. No. 4 (Sims).
3. Vancouver Shipyards Co. v. Construction Maintenance and Allied Workers, Local 506 Marine and Shipbuilders (Bohun Grievance),  B.C.C.A.A.A. No. 66 (McPhillips).
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