On August 27th, Arbitrator Bill Kaplan held that an employer breached its collective agreement by implementing random alcohol testing for safety-sensitive positions. The employer attempted to argue that Arbitrator Michel Picher’s strong pronouncement against random testing in his December 2006 Imperial Oil case was wrongly decided though it was upheld on a review for patent unreasonableness by the Ontario Court of Appeal in May. Mr. Kaplan disagreed:
In my view, the Court of Appeal made clear that it accepted Arbitrator Picher’s analysis and conclusions based as they were on the facts, the language of the collective agreement and the synthesis of the arbitral authorities all set out within a context of balancing of interests. Even if Arbitrator Picher’s conclusions were not judicially endorsed, having carefully reviewed all of the authorities relied on by counsel, I find Imperial Oil persuasive and almost on all fours with the facts of this case.
The Picher decision suggests that a general policy of unnanounced random alcohol or drug testing will only be justifiable if there is evidence of a significant problem in controlling the impact of drug and alcohol use on the workplace. In this case, Mr. Kaplan said, “There is no evidence of a problem to be adressed.”