'There was no sign of ongoing abuse in the workplace and this worker showed no signs of abuse'
A railway company unjustly dismissed a worker who failed an unreasonable random drug test under its alcohol and drug policy, the Canada Industrial Relations Board (CIRB) has ruled.
The worker was hired in 1995 by Canadian Pacific Railway (CP) – before a merger made it the Canadian Pacific Kansas City Railway - to be a general labourer. In 2014, he became a supervisor at a plant in Transcona, MB. In that non-unionized role, he supervised unionized workers who welded and prepared stick rail into rail strings.
CP had a drug and alcohol policy on which employees were trained annually. The policy stated that employees were subject to drug and alcohol testing following a workplace incident, reasonable suspicion of impairment, and for monitoring of employees with substance use disorders. Breaches of the policy were subject to discipline up to and including discharge.
In 2019, CP announced it was introducing random drug and alcohol testing for employees in safety-sensitive and safety-critical positions “at specific workplaces with a demonstrated problem with alcohol and/or drug use,” along with a ban on consuming cannabis 28 days before going on duty.
In December 2020, random testing was introduced for non-unionized employees in safety-sensitive and safety-critical positions at the worker’s plant. Unionized employees were still only subject to post-incident, reasonable suspicion, or ongoing monitoring testing.
Random drug and alcohol test
On March 10, 2021, the worker was selected for random testing. The worker underwent a breath alcohol test, a urine test, and an oral fluid test. The urine test came back non-negative for cannabis and he told the plant manager that he occasionally smoked marijuana.
A medical laboratory confirmed that the amount of cannabis in the worker’s oral fluid and urine samples were in excess of the policy’s cut-off levels.
The policy required CP to remove the worker from service and refer to an HR business partner for the investigation and discipline process. CP’s medical review officer discussed the test results with the worker and he said that he had been using drops containing THC – the psychoactive element of cannabis – for a few months to help deal with sleep difficulties related to personal problems.
On March 15, CP management determined that the worker had chosen to violate the drug and alcohol policy and terminated his employment for breaching the policy, which it characterized as negligent conduct that was “a serious breach of the trust and confidence placed in you as a supervisor.”
Unjust dismissal complaint
The worker filed an unjust dismissal complaint under the Canada Labour Code, arguing that CP’s random testing program was illegal and an unreasonable exercise of management rights. He also argued that CP didn’t conduct a proper investigation or inquire whether he had a disability that could be accommodated, as was required by the policy.
The worker acknowledged that he was required to disclose cannabis use under the policy, but he said he didn’t because he was ashamed and feared being stigmatized.
The CIRB noted that in order for there to be just cause for breaching an employer rule or policy, the rule or policy must itself be reasonable. In addition, a rule or policy that affects personal rights such as bodily integrity has to strike a reasonable balance between the employer’s interests and the impact on employees, the CIRB said, noting that the Supreme Court of Canada established in Irving Pulp and Paper, [2013] SCC 34, that “random drug and alcohol testing is a permissible exercise of an employer’s management rights in exceptional circumstances only.”
“[Past jurisprudence] has put a lot of emphasis on the invasive nature of random testing and how it’s an inherent violation of privacy,” says David M. Brown, co-founder and partner at Ascent Employment Law in Vancouver. “Testing is viewed to be a medical procedure and it shouldn't be taken lightly or easily discarded when we're talking about bodily autonomy and privacy.”
The CIRB ruled that CP's random testing policy didn’t meet the reasonable standard required for such policies, specifically noting the absence of evidence of a substance abuse issue at the Transcona plant. The policy failed to balance workplace safety with employee privacy rights, and the CIRB criticized the company for implementing random testing exclusively for non-unionized employees. While CP’s objective was to ensure the health and safety of its operations, this wasn’t achieved by excluding unionized workers from the random testing program, particularly since the worker’s subordinates were in safety-critical roles while he was less so as a supervisor, said the CIRB.
“CP presented some evidence that, broadly speaking across all of their work sites, they're dealing with safety-critical infrastructure, but [the worker] was working at a refurbishing plant for track so it's not like they were operating the trains,” says Brown. “And there was basically no evidence that there was a history of drug and alcohol consumption on the site.”
Unreasonable exercise of management rights
In addition, CP didn’t provide any evidence that it couldn’t use a less-invasive means to meet its safety objective, such as reasonable suspicion and post-incident testing. As a result, random testing was found to be an unreasonable exercise of CP’s management rights, so the company couldn’t rely on the test results for just cause, the CIRB said.
What's interesting is that the worker wasn’t subject to a collective agreement, but the CIRB applied the test for unionized workers to assess the reasonableness of the policy, according to Brown.
“I suspect CP didn’t apply random testing to unionized workers because they knew it would never have passed the smell test for random alcohol and drug testing [as established by the Supreme Court of Canada] in the context of a unionized workplace,” he says. “They probably thought that it would be easier to implement and enforce with non-unionized staff.”
The CIRB also questioned the 28-day cannabis ban, which it found lacked a clear safety basis. CP’s own medical review officer testified that the data on residual impairment from cannabis was mixed and there wasn’t evidence that impairment continued for 28 days.
Flawed investigation
The CIRB also found that CP failed to conduct a full investigation as required under its own policy. The investigation was limited to a review of lab results and a brief conversation with the worker, neglecting to explore whether a substance use disorder or mitigating circumstances existed, said the CIRB, noting that CP’s medical review officer acknowledged that cannabis impairment couldn’t be determined from urine and oral fluid test results.
“This went from testing to termination incredibly quickly [five days], with the medical asking him a couple of questions, including if he had been consuming cannabis, which he admitted to,” says Brown. “The CIRB found there was no reason to go about this so quickly - he was already removed from service if there were safety concerns - and the policy stated that the employer could issue discipline up to and including termination, which suggests that there is some level of discretion in identifying what is the appropriate discipline for a policy breach.”
“I think [CP] was doomed from the beginning, because the policy was problematic,” he adds. “The CIRB also found issues not so much with the testing, but with the investigation process - one of the criteria supporting termination for policy breaches is that the policy has to be consistently and accurately followed.”
The CIRB found that the worker breached the policy by failing to disclose his cannabis use, but his explanation for why he didn’t do so was reasonable and didn’t warrant any discipline. It noted that some individuals who may have a substance use disability may not be able to self-disclose due to the nature of the disability.
"A just and equitable response to the worker’s drug test results would have been a non-disciplinary response" considering the worker’s lengthy and positive service record and personal circumstances, said the CIRB in finding that CP didn’t have just cause for discharge.
Privacy invasion
CP was ordered to reinstate the worker, compensate him for lost earnings, and make his pension whole. In addition, the company had to cover 70 per cent of the worker's legal costs.
“The CIRB was concerned that there was arguably no reason why random drug and alcohol testing was necessary in this workplace - there was no sign of ongoing abuse in the workplace and this worker showed no signs of abuse,” says Brown. “There's going to be significant concern about the privacy invasion by basically forcing people to undergo an invasive medical procedure.”
The decision doesn’t mean that random drug and alcohol testing is a non-starter, but it’s only reasonable in limited circumstances, according to Brown.
“This reinforces and validates the seminal Irving Pulp and Paper case and confirms that it’s good law,” he says. “But it makes it abundantly clear that, in the majority of workplaces, random drug and alcohol testing is not going to be enforceable - and that's been clear for a decade now.”
See Felix and Canadian Pacific Railway, Re, 2024 CIRB 1122.
