Wednesday, 19 June 2013

Random Testing and the Limits of the Management Rights Clause

It’s a hallmark tenet of collective bargaining that if an employer aims to discipline an employee it must first have reasonable cause for doing so. Even then an employer can only impose a workplace rule with disciplinary consequences “if the need for the rule outweighs the harmful impact on employees’ privacy rights”.

Still, employers have been known to try to get around these restrictions via the management rights clause. Such employers conveniently interpret the management rights clause as giving them carte blanche to make rules in the workplace, often without any consultation with the union. Rules requiring drug and alcohol testing are often the result of such interpretation.

But as a recent Supreme Court decision shows, if an employer in your workplace has adopted a policy of conducting random drug or alcohol tests, it may be in violation of the law.

In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd[1] the Supreme Court recently dealt with the scope of an alcohol testing policy imposed under the management rights clause at a kraft paper mill. The employer unilaterally adopted a policy that allowed the company to give workers random and unannounced alcohol tests. The company did not negotiate with the union before adopting this policy. 

The policy contained a random alcohol-testing component for employees who filled “safety sensitive”, or “dangerous”, positions. Under the policy, ten percent of employees per year were to be randomly selected for a breathalyzer test.  A positive test for alcohol could include disciplinary measures as severe as dismissal. If a worker refused to take the breathalyzer it was grounds for immediate dismissal.

When the company randomly selected an employee who had shown no signs of having consumed alcohol, the union grieved the policy. The legal issue for the Court was the interpretation of the management rights clause of a collective agreement. In other words, how much power does an employer have to unilaterally make policy decisions outside of the collective agreement? What limits, if any, are there to the scope of the management rights clause?

Generally, if an employer wants to use the management rights clause to unilaterally impose policy measures and workplace rules any rule or policy so imposed must be both reasonable and in accord with the collective agreement[2]. Reasonableness limits the scope of management’s right to impose unilateral policies.

An employer cannot discipline or dismiss an employee without just or reasonable cause. Just or reasonable cause is a crucial protection for unionized workers against an employer who would yield its power in unsavoury ways. It goes to the very heart of workplace safety and job security. In this case, the employer didn’t have reasonable cause to test the employee who grieved. The employee was simply randomly selected as per the employer’s policy.

Besides failing to satisfy the reasonable cause requirement, the policy utterly failed to respect the privacy rights of workers. Compelling a worker to take a breathalyzer is an invasion of the workers’ right to privacy. This privacy is “essential to the maintenance of his human dignity”[3].

The employer’s policy of random alcohol-testing required employee’s to submit to random breathalyzer tests or suffer potentially severe consequences. The policy not only failed to satisfy the reasonable or just cause requirement that employers have to meet, it unjustly harmed the dignity of the workers. The Court overturned judicial review decisions from the lower courts and restored the arbitration decision that had allowed the grievance.



[1] 2013 SCC 34. (Irving).
[2] This is often referred to as the “KVP Test”.
[3] R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431-32), cited with approval in Irving at para 50.

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