Case Report – Arbitration board upholds challenge to post-incident testing provision

On September 3rd, an arbitration board chaired by David Elliot held that a post-incident drug and alcohol testing provision was unreasonable because it required for an automatic test of any employee “involved” unless there were reasonable grounds to find that alcohol or drugs did not cause the incident.

The board felt that this reverse onus was improper. It did not, however, find that an employer must have reasonable grounds in order to test, and endorsed an approach whereby a test could also be ordered where there is, “no credible explanation for the accident, near miss or other potentially dangerous incident.” This finding, which seems sensible, may have been influenced by evidence that supervisors were applying the reverse onus improperly by asking, “Can the use of drugs or alcohol be ruled out?”

Re Communications, Energy and Paperworkers Union, Local 707 and Suncor Energy Inc. (3 September 2008, Elliot).