The Alberta Court of Queen’s Bench recently released a decision that provides guidance regarding a non-union employer’s contractual right to implement random drug and alcohol testing.
In Phillips vs. Westcan, 2020 ABQB 764, the Alberta Court of Queen’s Bench confirmed the use by a non-union employer of random drug and alcohol testing in Alberta for security sensitive positions.
The employee, Mr. Phillips, worked as a long haul truck driver to transport dangerous goods. The nature of Mr. Phillips’ duties meant that he usually worked remotely and unsupervised.
Mr. Phillips was first employed by Westcan in 2013, when the drug and alcohol testing policy was in place. Mr. Phillips left and returned to work at Westcan in 2015. Upon his return to Westcan, Mr. Phillips objected to being subjected to random drug and alcohol testing and sought a permanent injunction against his employer in order to stop testing it.
For the injunction to be granted, Mr. Phillips had to establish that he had an enforceable right not to be subjected to random drug and alcohol testing. The Court noted that Phillips’ claim addressed the following three issues:
- Is it a condition of Mr. Phillips’ employment contract that Westcan randomly test its employees, including Mr. Philips, for drugs and alcohol?
- If so, is this clause of the contract enforceable?
- If not, does Westcan have the right to impose random testing on Mr. Phillips?
The Court’s findings on these three issues are discussed below.
The test was a duration of the employment contract
The court found that Mr. Phillip had agreed that the random testing was part of his contract. In short, the Court based its conclusion on the fact that Mr. Phillips had recognized in a standby agreement and in his employment contract that he occupied a security-sensitive position and that he was required to comply with the policies. from Westcan. Mr. Phillips had also received training on the testing policy.
When Mr. Phillips accepted the Westcan job offer, he expressly agreed to be bound by Westcan’s policies and knew that those policies included random drug and alcohol testing for drivers.
Testing was a binding condition of the contract
Mr. Philips’ main argument was based on the case law regarding the applicability of random testing policies imposed unilaterally and not contractually by an employer.
The Court considered Communications, Energy and Stationery Union of Canada, Local 30 c Irving Pulp & Paper Ltd., 2013 SCC 34 [Irving], who ruled that in a unionized workplace, unilaterally imposed random testing will only be justified if there is “evidence of increased safety risks, such as evidence of a general substance abuse problem in the workplace. “.
In the non-unionized context, the Court considered the reasoning of the Supreme Court of Canada in Entrop v Imperial Oil Ltd. et al., 2000 CanLii 16800 (ONCA) [Entrop], who ruled that an employer could justify a At first glance discriminatory rule or standard in the workplace by passing the following three-step test:
- that the employer adopted the standard for a purpose rationally linked to the performance of the work;
- that the employer adopted the particular standard in the honest and good faith belief that it was necessary for the achievement of this legitimate work-related aim; and
- that the standard is reasonably necessary for the achievement of that legitimate work-related aim. To demonstrate that the standard is reasonably necessary, it must be shown that it is impossible to accommodate individual employees who share the characteristics of the applicant without placing undue hardship on the employer.
The Court concluded that Irving and Entrop were of limited application to the circumstances. Neither case dealt with the enforceability of an express contractual provision allowing an employer to randomly test an employee for drugs and alcohol.
In view of the limited assistance provided by Irving and Entrop, the Court focused its analysis on the applicability of the testing policy in accordance with the standardized principles of contract and employment standards. To this end, the Court noted that Mr. Phillips had not argued that the police were breaking the law and that, as a rule, the parties were therefore bound to the terms of the employment contract.
Mr Philips also suggested that the testing policy was unacceptable and that the court should rule it unenforceable on that basis. The ability of a court to override a contract term on the basis of injury is strict and usually relies on misconduct or hard practice in forming the contract, often when there is an imbalance of bargaining power.
The Court concluded that the testing policy was not unreasonable and that random drug and alcohol testing for a security-sensitive post working with dangerous goods in remote areas of Canada was not ” not at all divergent from Community standards of commercial morality “.
One-sided testing was appropriate
The Court’s analysis was complete because it found the testing policy to be an enforceable condition of Mr. Phillips’ employment contract. However, somewhat as an aside for the sake of “completeness”, the Court also considered the potential application of the principle of Irving under the circumstances of the moment.
In doing so, the Court cautioned that it was not clear what test a non-union employer would have to meet if it implemented unilateral tests (i.e., without a contractual basis to implement tests). The Court concluded that Westcan would have been able to meet the test of Irving.
Conclusion and takeaways
The Court emphasized that its analysis was context specific. However, this ruling provides general guidance on when an employer has a contractual right to apply random drug and alcohol testing for security-sensitive positions. Employers should ensure that employees are clearly informed of contractual drug and alcohol testing policies during the onboarding process.
Drug and alcohol testing is a complex area of ââlaw that raises a number of issues.