The grievor, a sawmill worker, was moving empty Oxygen and Acetylene cylinders on pallets using a forklift. After he failed to properly secure a load of cylinders, they spilled from the pallet onto the ground. The employer conducted an investigation and concluded the spill had been a “triggering incident” under their drug and alcohol policy, citing concern of potential injury or damage. Accordingly, the grievor was required to undergo drug and alcohol testing.
While employers may submit an employee to post-incident drug and alcohol testing to maintain safety in the workplace, they must demonstrate their decision was reasonable in the circumstances and balance the impacted employee’s privacy rights.
As stated by Arbitrator Fleming:
While recognizing the importance of ensuring safe workplaces, the Supreme Court of Canada has also recognized that drug and alcohol testing is highly intrusive and must be subject to stringent standards and safeguards: Irving Pulp at para 23.
When assessing whether an employer’s decision was reasonable, an arbitrator will consider the threshold level of incident needed to justify testing, the degree of inquiry necessary before the decision to test is made, and the necessary link between the incident and an employee’s situation.
The threshold to justify post incident testing is a “significant incident”.
While a “near miss” could constitute a significant incident, there is a required level of proximity between the potential harm and the incident. Speculation of “worst case scenarios” can undermine the balancing of interests, as Arbitrator Fleming opined:
To allow testing to occur based on worst case scenarios or remote possibilities would justify tests in virtually any situation which would not reflect the required balancing of interests.
In this case, the employer’s risk assessment was based on the fact the incident occurred on a main road at the mill site where vehicles and pedestrians were sometimes present. However, the employer did not consider other important factors, including:
- one person who witnessed the incident expressed no concern for his safety;
- no pedestrians or vehicles were in the vicinity at the time of the spill, nor was there a likelihood they would have been;
- pedestrians were required to be in a crosswalk and could have easily avoided the spilled bottles;
- vehicles were required to give forklifts the right of way and it was very unlikely a vehicle would have been unable to stop and avoid the cylinders;
- there was no basis for the employer’s concern the cylinder caps could be damaged from the fall; and
- the employer’s own investigation form noted the risk as being low (negligible/remote).
Accordingly, there was no real realistic risk of injury to people or damage to property and the spill was not a significant incident that justified testing.
The grievor was awarded $1,000 in general damages for the breach of his privacy rights.