Welcome to the December, 2020 issue of the Illness and Absenteeism newsletter. In this issue, you will find:

A. Featured Case:

An employer will frequently maintain the classification and rate of pay for an employee whose disability is expected to be temporary. However, where it becomes apparent that the need for accommodation will continue for a longer period, prudence dictates that a proper assessment be conducted, and where reasonably possible, the employer  place the employee in an accommodated position that addresses his diminished ability.

It is the employer who initially determines the suitability of an accommodation based on its knowledge of the workplace and then, if required, seeks information from the physician as to whether the duties of the position, either existing or where necessary, modified, fall within the employee’s medical restrictions.

The employer bears the responsibility for acting in a timely fashion and for advancing a reasonable offer of accommodation. It is not appropriate for the employer to cede responsibility for the process by defaulting to the employee in the sense that the onus is placed  on the employee to bid on a suitable position when it becomes available.  [click here to read more ]

B. Other Decisions of General Interest

1. As a result of the different principles underlying wage loss awards in wrongful dismissal and discrimination complaints, awards flowing from discrimination complaints can often be much higher. For example, an employee who was terminated after one day of employment was awarded 12 months of wage loss ($35,000) and a further $30,000 as damages for injury to her dignity, feelings and self-respect. [click here to read more]
2. A union’s claim for payment of the cost of sick notes was rejected where the collective agreement was silent on reimbursement and the employer’s policy regarding sick leave documentation had never led to the employer reimbursing employees for that cost. [click here to read more]
3. Post-incident drug and alcohol testing (i.e. testing that is precipitated by an accident or a “near miss"), does not require that the employer have reasonable grounds to believe the employee was under the influence of drugs or alcohol at the time of the accident or near miss. Rather, the employee’s right to privacy must be balanced against the safety and business concerns of the employer. That balancing requires a proper consideration of the existing facts and a genuine exercise of discretion given that a finding in favour of testing will impact on the employee’s privacy rights. Generally speaking, the incident must be significant in the sense that it had the potential to damage persons or property and the employer must have conducted a proper investigation in an effort to discover the cause of the incident. It is only where the employer has conducted a proper investigation in an attempt to ascertain cause and no such explanation is apparent that the employer’s interest in the safety of employee’s in a safety sensitive workplace trumps the individual employee’s right to refuse to be tested. [click here to read more]

A. Featured Case

An employer will frequently maintain the classification and rate of pay for an employee whose disability is expected to be temporary. However, where it becomes apparent that the need for accommodation will continue for a longer period, prudence dictates that a proper assessment be conducted, and where reasonably possible, the employer  place the employee in an accommodated position that addresses his diminished ability.

It is the employer who initially determines the suitability of an accommodation based on its knowledge of the workplace and then, if required, seeks information from the physician as to whether the duties of the position, either existing or where necessary, modified, fall within the employee’s medical restrictions.

The employer bears the responsibility for acting in a timely fashion and for advancing a reasonable offer of accommodation. It is not appropriate for the employer to cede responsibility for the process by defaulting to the employee in the sense that the onus is placed  on the employee to bid on a suitable position when it becomes available.

In Zellstoff  Celgar Limited Partnership, 2020 CanLII 69343 (BC LA) (Kandola), the employee alleged that the employer had failed to accommodate his mental disability.

The employee had been employed as a Lubrication Mechanic in the Oiling department of the employer’s pulp mill.  In 2015, after having been in the position for five years, the employee began to experience significant anxiety issues. He went off work for two weeks, and when he returned, he regularly felt overheated and was sweating heavily in the course of performing his duties. This triggered his anxiety. His family physician issued a medical certificate which stated that he was “unable to tolerate warm/hot environments” and that “at times, he will have to remove himself from the heat and go to a cooler area to cool off”. The employee later acknowledged that he was at that time experiencing difficulties with heat and other forms of discomfort on an almost daily basis while performing his duties.

Approximately three weeks after his return, the employee suffered   an anxiety attack. He was unable to work for a period, during which time he adjusted to a new medication for his anxiety. He also took various steps to try to manage his anxiety including seeing a counsellor, engaging in cognitive behavioural therapy and seeing a psychiatrist. After approximately six weeks he began to feel better and began a gradual return to work. His doctor recommended that “due to his heat intolerance” he should, to the extent possible, only work in “temperature controlled environments”. The employee testified that he did not want to return to the Oiling department because he was frightened that it would trigger a relapse. He had previously worked in the “yard department” and felt he could be successful there. When the employee returned to work in August, 2015, he was temporarily assigned to the relief pool to work in the yard and chip handling departments. While being so accommodated, the employer continued to hold his higher classified position and continued to be paid his higher rate.

Two months after his latest return, the employee presented a letter from his doctor. It advised that the employee’s psychiatrist had diagnosed him with anxiety and agoraphobia. Although the employee’s condition had improved, his doctor expressed the view that the employee’s current return to work would fail if he was forced to return to his previous job. The doctor recommended that the “accommodation should be continued for [the employee’s] overall health and well-being”. Shortly thereafter, the employee’s psychiatrist provided a similar letter.

The employee continued to work in the relief pool, primarily in the yard and chip handling areas, for the balance of 2015, for all of 2016 and well into 2017. Throughout this period, the employee maintained his lubrication mechanic wage rate as he had done since he had returned to work in August 2015.

In May of 2017, the employee provided another report from his doctor. It stated that

[The employee] is suffering from agoraphobia, heat intolerance, claustrophobia and fear of heights. He needs to avoid night shifts, enclosed spaces, heat and large groups of people.  He is currently doing well and if he is allowed to continue with his current limitation, he should continue to do well. This is a lifelong chronic condition that will likely not improve further.

The arbitrator commented that this was the first time that the employer had learned that the condition was lifelong and that it would be unlikely to improve. It was also the first time that a physician had identified a height restriction for the employee. That information caused the employer to seek an Independent Medical Examination (an IME).

In October, 2017, a vacancy arose in the Stores department for a permanent journeyman industrial warehouseman, with a wage rate similar to that of the lubrication mechanic. The duties for the position were for the most part within the employee’s restrictions. The employee did not apply, for he was happy receiving the lubrication mechanic wage rate while working in the relief pool, and “did not think anything was going to change.” As a result’ he said he “did not pay much attention” to the posting.

In December of 2017, a permanent Medium Equipment Operator (“MEO”) position became available in the employer’s yard. The employer believed that the duties of the position were for the most part within the employee’s restrictions. It considered however that the employee’s placement in the position could interfere with the line of progression in the Yard, for the employee would be entering the department with the lowest department seniority but would be above others in the line of progression. There was also the matter of the wage to be paid to the employee. He had been receiving his Oiler rate of $39.69 while being accommodated for the past two years and the MEO position paid only $31.59 per hour. Senior management ultimately approved a blended rate that would transition to the collective agreement rate of $31.59 after one year. The union expressed concern over the proposal due to the impact on other employees in the line of progression. The position was “put on hold”; with the employer advising that it did not leave employees in the relief pool forever.

It was finally agreed that the employee would start in the MEO position in April of 2018.

The wage issue remained unresolved, and at the request of the union, the blended rate was extended until October, 2019. At that point, the employee began to receive the $31.59 rate for the MEO position.

The grievance was filed on November 29, 2018.  It alleged that the employee should have been accommodated in his own position as a lubrication mechanic, with modified duties. If that was not possible, the employer ought to have considered other jobs that would have maintained the employee’s wage rate. However, it was alleged that even if that was not possible, the employer had either promised to maintain the employee’s wage rate or was estopped from reducing it. With respect to the latter assertions, the arbitrator concluded that there was no estoppel or promise to maintain the rate.

On May 28, 2019, the employer posted a permanent vacancy for a log yard operator loader. The position appeared to be with the employee’s medical restrictions. It paid just slightly less than the rate paid to the lubrication mechanic and approximately $4.00 more per hour than for the MEO position that the employee was then performing. The employee did not apply. He testified that he did not apply because he was not concerned about his wage at the time.

The arbitrator found that the union had established a prima facie case of discrimination, following which, the burden shifted to the employer to justify its conduct and to establish the existence of a bona fide occupational requirement.

The arbitrator stated that the employer had made a critical error when it failed to require additional medical information prior to making its final decision:

While the IME Report was consistent with the May 2017 Return to Work Report, it left many critical questions unconsidered and unanswered … Specifically, the employer did not provide any information [to the doctors] regarding the nature of the workplace or the duties associated with the lubrication mechanic position … There was a complete absence of any questions regarding  whether the duties of a lubrication mechanic could be modified to meet the [employee’s] restrictions, including whether or how the position could be modified to address the relevant safety risks and the [employee’s] anxiety triggers …

The arbitrator commented that even if the employee could not be returned to the Oiling department without undue hardship, the employer would then have had to consider other positions where he could have been accommodated. He considered that the employee could have been accommodated in the Stores vacancy that arose in October, 2017 and had then remained unfilled for several months. The position had an hourly wage of $37.14 (as compared to the Oiler rate of $39.69). While the arbitrator acknowledged that the employee had not applied for that vacancy, he appeared to accept the employee’s explanation that he would have done so had he known that his rate was going to be decreased to the MEO rate of $31.59.

The arbitrator also commented that the union had not seriously disputed that it would have constituted an undue hardship for the employer to have returned the employee to the Oiler position. Rather, he found that as at April 2018, the employer had breached its duty to accommodate the employee’s disability by assigning him to the lower classified MEO position without first considering

(a) whether the lubrication mechanic position could be modified on the basis of medical evidence that addressed the issue, or
(b) whether the Stores vacancy, which had a comparable wage rate, was a reasonable accommodation option

The arbitrator stated that he was troubled by the employee’s failure to apply for the log yard operator position that arose in May 2019.  He commented that the employee had an obligation to facilitate and to accept reasonable accommodation, but he failed to apply despite the fact that the employer had specifically drawn the posting to his attention. In the absence of a reasonable explanation, the employee was found to have failed to fulfill his duties in the accommodation process by not applying for that position.

In terms of remedy, the arbitrator declared that the employer breached its duty to accommodate the employee as of April 2018 when it assigned him to the MEO position with a significant wage reduction without first considering whether the employee could be reasonably accommodated with modified duties as a lubrication mechanic or alternatively in the vacant Stores position. Damages for lost wages and benefits were limited to the period from April, 2018 to June, 2019 when the posting closed for the log yard operator position. The sum of $2,000 was awarded as damages for injury to the employee’s dignity, feelings and self-respect.

By way of comment, it would appear relatively apparent that the employee did not want to and could not have been accommodated in his former position as an Oiler. It is also apparent that the employer erred when it failed to offer the employee a position, whether modified or not, that fell within his medical restrictions. The law is clear: an employee is not entitled to select a preferred accommodation from among those that would otherwise be reasonable. The employer should have brought the matter to a head by offering to accommodate the employee in a specific position.

In addition, the arbitrator’s comments suggest that he misunderstood the physician’s role in the accommodation process. For instance, he stated that the employer should have questioned the doctor as to whether and how the lubrication mechanic position could have been modified to meet the employee’s medical restrictions, including whether the position could have been modified to address the relevant safety risks and the employee’s anxiety triggers. However, it is the employer who initially determines the suitability of an accommodation based on its knowledge of the workplace and then, if necessary, seeks information from the physician as to whether the duties of the position, as described by the employer, fall within the employee’s medical restrictions.

B. Other Decisions of General Interest

1. As a result of the different principles underlying wage loss awards in wrongful dismissal and discrimination complaints, awards flowing from discrimination complaints can often be much higher. For example, an employee who was terminated after one day of employment was awarded 12 months of wage loss ($35,000) and a further $30,000 as damages for injury to her dignity, feelings and self-respect.

In Richmond Plastics, 2020 BCHRT 82 CanLII) (Cousineau), the employee was terminated on her first day of employment after she disclosed a number of mental health conditions to a co-worker and management. At the same time, the employee had been exhibiting odd and unprofessional conduct in her interactions with other employees. The employer quickly concluded that the employee was not suitable and terminated her employment.

The Tribunal ultimately awarded the employee $30,000 as damages for injury to her dignity, feelings and self-respect. Although the employee had worked for less than one day, she was also awarded 12 months of wage loss, being $35,000.

In assessing the wage loss, the adjudicator stated:

The object of an award for wage loss is to put the person in the position they would have been in had the discrimination not occurred … To that end, a wage loss award should “fully compensate” the complainant for income lost “solely as a result of the discrimination” …

A wage loss award for discrimination is inherently different from the calculation of “reasonable notice” in employment law … Whereas the harm in a wrongful dismissal arises from a failure to provide reasonable notice of the termination of employment, the harm in a human rights complaint is grounded in the effects that discrimination had on the complainant …

One significant difference between these two types of damages is that, in a human rights complaint, the extent of a complainant’s wage loss is not necessarily correlated with the length of their employment. For example, in Impact Interiors, the complainant quit work on her second day due to sexual harassment. The Board of Inquiry awarded her wage loss for the 122-week period between the discrimination and the hearing; less the complainant’s mitigation earnings … The Ontario Divisional Court overturned that award on the basis that it was incommensurate with the “duration and quality of the complainant’s employment”. The Ontario Court of Appeal disagreed, and upheld the Tribunal’s award, which reflected “what the [complainant] would have earned had the discrimination not taken place” …

This point is further illustrated through the Tribunal’s authority to award wage loss where a complainant has lost only the opportunity for employment. For example, in Ayangma, the complainant was awarded two years’ wage loss after he was denied an employment opportunity because of discrimination. The Appeal Division of PEI’s Supreme Court upheld that award and overturned the deductions that the Human Rights Commission had ordered based on an alleged failure to mitigate his damages …

As a result of the different principles underlying wage loss awards in wrongful dismissal and discrimination complaints, awards flowing from discrimination claims may be much higher. For example, in Walsh, the Alberta Court of Appeal upheld an award for five years of wage loss. This encompassed the period between the discrimination and when other factors intervened to prevent [the complainant] from working. In Hughes v. Canada (Attorney General), 2019 FC 1026, the complainant was denied employment for discriminatory reasons. The Canadian Human Rights Tribunal awarded him five years of wage loss. This aspect of the award was overturned because the Federal Court found it was unreasonable to cut the complainant’s wage loss off at five years in the absence of evidence that, but for the discrimination, the employment would only have lasted that long … The court’s analysis suggests the award could have been even higher.

Adjudicator Cousineau then turned to an analysis of the wage loss in this case. He stated that the starting point is to establish a causal connection between the discrimination and the wage loss. He stated that this is a question of fact. Here, the employee had not worked from the time of her termination because she was completely disabled as a consequence of the discriminatory termination. Her depression and anxiety grew so severe that she could not work or search for work. While there were other factors that led to this outcome, the final “nail in the coffin” was the discrimination. Put another way, but for the discrimination, [the employee] would have been able to work. Because of the discrimination, she lost not only her job but also her ability to mitigate her damages by looking for other work… Given the trajectory of [the employee’s]   recovery, I accept that her condition would persist for two months past the hearing as well [i.e. for 18 months].”

While the employee could not have mitigated her wage loss because of her disability, there was

reason to doubt that her employment would have lasted 18 months because  of friction with her co-workers. The adjudicator speculated that she would likely have left, which is what happened in her previous job, or been terminated within her three month probationary period. The adjudicator therefore reduced the award by a contingency factor of one third, i.e. from 18 to 12 months.

2. A union’s claim for payment of the cost of sick notes was rejected where the collective agreement was silent on reimbursement and the employer’s policy regarding sick leave documentation had never led to the employer reimbursing employees for that cost.

In County of Hastings, 2020 CanLII 16712 (ON LA) (Nairn), the issue was whether the employer was obligated to reimburse an employee for the cost of a sick note that had been required pursuant to the Short Term Disability Plan.

The collective agreement was silent on reimbursement, and the employer’s policy regarding sick leave documentation had never led to the employer reimbursing employees for that cost.

It was the union’s position that the employer was required to provide payment for the full cost of medical documentation required under the Short Term Disability Plan by reason of the following statement that preceded the Schedule of Benefits in the collective agreement:

“The Employer undertakes to pay the full cost of providing the Short Term Disability Plan.

The arbitrator stated that “the commitment by the Employer [was] to pay the cost of providing the plan, not to pay the cost of providing the medical documentation expressly required in order to access the plan in the particular circumstances outlined … I am persuaded it is more appropriate to treat the cost associated with meeting [the collective agreement preconditions as an] eligibility cost, rather than as a cost of providing the plan.”

The arbitrator stated that had there been an ambiguity in the collective agreement, she would have resolved it in the employer’s favour having regard to the longstanding practice between the parties.

3. Post-incident drug and alcohol testing (i.e. testing that is precipitated by an accident or a “near miss"), does not require that the employer have reasonable grounds to believe the employee was under the influence of drugs or alcohol at the time of the accident or near miss.

Rather, the employee’s right to privacy must be balanced against the safety and business concerns of the employer. That balancing requires a proper consideration of the existing facts and a genuine exercise of discretion given that a finding in favour of testing will impact on the employee’s privacy rights.

Generally speaking, the incident must be significant in the sense that it had the potential to damage persons or property and the employer must have conducted a proper investigation in an effort to discover the cause of the incident. It is only where the employer has conducted a proper investigation in an attempt to ascertain cause and no such explanation is apparent that the employer’s interest in the safety of employee’s in a safety sensitive workplace trumps the individual employee’s right to refuse to be tested.

In Vancouver Shipyards Co. Ltd., 2020 CanLII 75894 (BC LA) (McPhillips), the employee had been suspended for refusing a drug test pursuant to the employer’s Substance Abuse Policy.

The employee was an alcoholic whose alcoholism had been in remission for two years. On the day of the incident, the employee was operating a magnetic overhead crane prior to the normal start of the work day and one of the large 4,500 lbs pieces of scrap steel that he was moving accidentally struck a light weight set of portable stairs. He reported the incident to the first manager that he encountered, who reportedly responded in a blasé fashion. That manager then reported the incident to the employee’s direct supervisor when the supervisor arrived at work some three hours later. The supervisor suggested, and the manager who had received the initial report agreed, that the employer’s “drug and alcohol checklist” should be completed to assess whether a test should be conducted.

The Policy provided that an employee may be required to undergo Substance testing where there was reasonable cause for such testing. Specifically included was where the employer reasonably believed that the employee’s “work performance may be affected by the use of Alcohol or Drugs based on the unusual behaviour or circumstances which includes but was not limited to any one or more of, slurred speech, smelling of Alcohol or Drugs, changes in personality, being argumentative, or mood swings.”

The Policy also provided that testing may be required after an accident or near miss involving injury  or a fatality and/or where an act or omission by the employee caused an unusual risk or injury to another person, and/or significant damage or a risk of significant property or environmental damage (i.e. post-incident testing).

The employee, with the involvement of his direct supervisor, completed the checklist/questionnaire. He was said to be calm, forthcoming and cooperative throughout that process.

The employee testified that his supervisor told him at the time that he did not suspect any impairment and that he was not going to recommend substance abuse testing. Following that discussion, the employee resumed his regular duties on the overhead crane.

The Supervisor, in his “Will Say” statement that was prepared for the arbitration, asserted the following with respect to the seriousness of the incident:

The incident here was significant. The steel plate weighed roughly 4500 lbs. It caused property damage. It could have caused serious injury or death if there had been a person in that place where the stairs were. It is not at all a common event that the operation of the overhead crane to load and offload material results in damage to property or persons. I would not characterize this as minor given the potential for harm. It should also be noted that the stairs were damaged beyond reasonable repair.

Later that morning, the employer’s Labour Relations Manager happened to be in the office on other matters. After hearing of the incident, he reviewed the checklist and after discussion with the Manager of the Shipyards, they decided that a drug and alcohol test would be appropriate in the circumstances. Following that decision, they reviewed the matter with the employee’s supervisor. In the result, the employee was advised that he would need to take a drug and alcohol test. After that meeting, the employee went to a walk-in-clinic to obtain a requisition for a blood and urine test. The tests were performed without delay, and all came back negative.

The employee was subsequently placed on an unpaid leave and advised that he would need to attend at an Independent Medical Examination (an IME) two weeks later. The testing from that IME supported the employee’s assertion of continued abstinence and that he required no further treatment.

The employee subsequently received a 10 day suspension.

The arbitrator divided his analysis into three areas; with those being (i) a general review of the jurisprudence dealing with drug and alcohol testing in Canada; (ii) a determination of what is the appropriate test or criteria to be applied in post-incident testing; and finally, (iii)  an assessment of whether on the present facts, the employer applied that test appropriately.

(i) General Principles

Arbitrator McPhillips stated:

It is clear from the extensive jurisprudence in Canada that a balancing of interests is required between an individual’s right to privacy and liberty with the integrity of his/her person and the legitimate business and safety concerns of employers …

On the one hand there is the need to ensure the safety of employees, both the specific individual and other employees at the worksite, and to acknowledge the potential legal liability for any company operating an enterprise, particularly one which is safety sensitive …

The competing consideration is the individual’s right to privacy. The most cited authority is that of the Supreme Court of Canada in Irving Pulp & Paper [2013 SCC 34 (CanLII)], (a case addressing random drug testing) … In applying these competing interests, the courts and arbitration boards in this country have drawn distinctions between what is required to justify such testing in each of three different situations: random drug testing, post-incident testing and reasonable cause testing. The Supreme Court of Canada in Irving Pulp & Paper, stated …

A substantial body of arbitral jurisprudence has developed around the unilateral exercise of management rights in a safety context, resulting in a carefully calibrated balancing of interests proportionality approach. Under it, and built around the hallmark collective bargaining tenet that an employee can only be disciplined for reasonable cause, an employer can impose a rule with disciplinary consequences only if the need for the rule outweighs the harmful impact on employees’ privacy rights. The dangerousness of a workplace is clearly relevant, but this does not shut down the inquiry, it begins the proportionality exercise.

This approach has resulted in a consistent [body of] arbitral jurisprudence whereby arbitrators have found that when a workplace is dangerous, an employer can test an individual employee if there is reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse. In the latter circumstance, the employee may be subject to a random drug or alcohol testing regime on terms negotiated with the union.

The arbitrator also referenced Imperial Oil Limited., 157 L.A.C. (4^th) 225 (Picher), where arbitrator Picher] stated …

At the risk of oversimplification, the “Canadian model” for alcohol or drug testing in a safety sensitive workplace as developed in the arbitral jurisprudence generally contains a number of elements as summarized below:

• • • • No employee can be subjected to random, unannounced alcohol or drug testing, save as part of an agreed rehabilitative program.
      • An employer may require alcohol or drug testing of an individual where the facts give the employer reasonable cause to do so.
      • It is within the prerogatives of management’s rights under a collective agreement to also require alcohol or drug testing following a significant incident, accident or near miss, where it may be important to identify the root cause of what occurred.

Arbitrator McPhillips continued:

The jurisprudence is clear that in balancing the competing interests of privacy and safety, different criteria have been established for each of these areas. While a number of cases refer to some tests being lesser than others … these [tests] should be treated as three distinct tests rather than viewing any of them as being more or less onerous. The tests are more appropriately differentiated on what is the basis in each of the situations for the invasion of an individual’s right to privacy in the interest of ensuring a safe working environment.

In the case of random testing of employees …, the jurisprudence establishes that in order to balance these interests and be able to randomly test employees at a safety sensitive worksite there must be both a history of drug abuse at that particular workplace and the unavailability of other less intrusive measures to address those problems.

The most germane distinction [in the case of this grievance] is the one between “reasonable cause” and “post-incident” testing … This difference was specifically referenced by the Supreme Court of Canada in Irving Pulp & Paper, supra, where the Court stated:

In a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety sensitive positions without having to show that alternative measures have been exhausted if there is “reasonable cause” to believe that the employee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident, or where the employee is returning to work after treatment for substance abuse.

In considering the criteria for “reasonable cause” testing, arbitrator McPhillips stated that a number of factors must be taken into account in order to accomplish the required balancing of interests of the individual employees and the need for safety. He commented that some of those considerations had been established in the jurisprudence, or in the policies of the employer, or in some cases, directly by the parties in their collective agreement. He noted that

It is readily apparent that the requirement for “reasonable cause” testing focusses on the “apparent aberrant” behaviour of the employee and whether, based on the employee’s actions, conduct or demeanour, there is a legitimate basis to suspect that the employee may be impaired by drugs and alcohol. That principle has been expressed in most of the authorities which [have] been referred to by the parties.

However, as arbitrator McPhillips noted, “reasonable cause” testing “bears some element of risk of missing situations where impairment is present”. He referenced Jacobs International, 264 L.A.C. (4^th) 185 (Albertyn) where the expert evidence established that signs of impairment” are not necessarily pharmacological and that some may be masked by an intoxicated person who has learned to do so. That decision remarked that

This is why a workplace safety program cannot rely solely on visual recognition and reporting of at-risk behaviours. The only certain method of determining impairment from drugs or alcohol is by laboratory testing of a saliva, urine or blood sample. Despite these weaknesses in the reliability of observation, the Canadian model requires some physical evidence of impairment if an employer wishes to require testing on grounds of reasonable cause. This is a safeguard, a balance in favour of employee privacy rights to limit the extent to which an employer may require drug and alcohol testing.

Post-Incident Testing

Arbitrator McPhillips reviewed a number of post-incident testing cases and commented that there appeared to be some differences between the authorities. He noted however that the authorities, including the Supreme Court of Canada cases, establish that post-incident testing is distinct from reasonable cause testing and that the two tests should not be conflated. He commented that if actual signs of impairment were required for post-incident testing, the result would be the elimination of post-incident testing as a separate category and it would simply be subsumed into the reasonable cause test.

As a result, “post-incident” testing does not require an employer to prove it also had “reasonable cause” or grounds to believe the employee had consumed drugs or alcohol or is impaired by them. In order to justify drug and alcohol testing in a post-incident situation the focus is on the incident and its causes and an employer must establish the possibility of the impairment of the employee was a reasonable avenue to explore in that particular situation; the question is whether it will aid the investigation. This analysis does not require a “second balancing of interests” by the employer.”

Arbitrator McPhillips further commented that

The preponderance of arbitral authority … indicates that in cases where other factors are present which may have contributed to the incident; an employer must consider and weigh that evidence in deciding whether to invade the privacy of the employee. In other words, the determination of whether an employer was within its rights to request a drug and alcohol test must focus on whether impairment was a reasonable line of inquiry in the particular circumstances, given that testing will involve an intrusion into the privacy rights of the individual. It requires a proper consideration of the existing facts and a genuine exercise of discretion given that a decision to test will impact that important right.

Arbitrator McPhillips then considered the criteria that should be applied. He relied on the decision of Weyerhaeuser Co. [2006] A.G.A.A. No. 48 (Sims) to “organize” the criteria that had been considered in the various cases. He did so on the basis of the three elements set forth in Weyerhaeuser, which he summarized as follows:

(i) the threshold level of incident needed to justify testing;
(ii) the degree of inquiry necessary before the decision is made; and
(iii) the necessary link between the incident and the employee’s situation to justify testing.

After considering the criteria set forth in the case at hand, the arbitrator stated that

There has been much discussion in the jurisprudence with respect to the necessary level of gravity of the incident. The cases identify a number of factors that may cause an incident to be characterized as significant, the most obvious of which are when there is a fatality/injury or significant financial damage to the property or equipment of the employer or a customer. However, it is also clear that it is appropriate to consider in each case whether there was “potential” for serious injury or damage and whether it was proximate.

The arbitrator then commented on various decisions where arbitrators had characterized the incident as constituting a “significant event”.  In one, (Atco Electric), the damage was minimal but the accident had a reasonable potential to have resulted in serious harm. The circumstances of the accident took it out of the trivial category. “While the actual damage was minimal and no injuries occurred, it involved two company vehicles” …

In a case involving Weyerhaeuser, the arbitrator stated that “the amount of the damage or the magnitude of the incident must remain a factor to be weighed in determining whether there is sufficient cause to justify overriding the employee’s privacy rights through mandatory testing. This can include the near miss concept which, almost by definition, involves no damage, but there still has to be a sufficient gravity to the event. Any near miss must involve a realistic conclusion after a thorough investigation that serious damage almost occurred.

Similarly, in Elk Valley Coal, the arbitrator observed that an incident does not have to involve a dangerous occurrence in order to raise a safety concern. An employee’s condition is relevant in the investigation of a “safety related incident” or in the investigation of a “safety event”. The definition of a ‘significant event’ also included the ‘unusual risk of such an occurrence’. [The arbitrator stated] this only makes common sense. Good fortune or good luck as in the case of a ‘near-miss’ should not be the measure of any policy concerning safety.”

Finally, in Fording Coal Ltd., the arbitrator commented that the incident fell within the definition of “significant event” in the policy. He stated that quite apart from the definition in the policy, he was dealing with a significant or a “critical incident”. A piece of equipment used in a mine operation, which goes out of control in an environment where the operator could be injured or other workers could be present and injured is significant. The degree of harm caused in this particular incident was to the lower end of the scale as there was no personal injury. There was, however, a potential for injury. The event could have been more significant if a personal injury or fatality ensued. I do not read the cases on significant event as requiring a “tragedy” before the right to test an employee is engaged.”

In the instant case, arbitrator McPhillips stated that it was with the foregoing considerations in mind as to what constitutes a serious or significant event that he would address that question in this case.  He stated that the stairs that were damaged were not a major piece of equipment but neither was the damage insignificant. “The cost factor here is one of low significance, although not trivial, and the incident is one that falls at the lower end of the financial spectrum. [ However], the potential for harm or damage is also a major basis for the employer’s concern in the present circumstances … [The] assertions about the potential for harm by the [employer] have not been contradicted by the union or the [employee] himself in any objective way. As a result they must be accepted as an accurate assessment of the situation and it must be concluded that the evidence establishes that there was potential for serious harm if other persons had come into the area during the movement of such large pieces of steel remnants (4,500 lbs. each) by the heavy duty mechanical crane. On that basis, it is concluded that the threshold test of this being a serious incident has been met in the present situation.”

Arbitrator McPhillips stated that the employee was the “root cause” of the incident; that there was no reasonable explanation for the incident; there were no external factors identified, such as environmental or mechanical issues, including equipment defects; and that the employee failed to provide any reasonable explanation for the incident. “If there had been other such possibilities raised, then the employer would have had to consider the likelihood of those reasons being the cause of the accident. In the circumstances

further investigation by the employer by way of an alcohol and drug test was warranted as there was no other plausible explanation against which to weigh the [employee’s] privacy interests; it is precisely the opposite of a situation where the facts establish the individual could not have been a potential contributing factor.

Arbitrator McPhillips then referenced the decision of arbitrator Albertyn in Jacobs Industrial, supra, where he had stated:

Post-incident testing, like reasonable grounds testing, is reactive; reactive to some conduct by the employee. It is not proactive, as in random testing. To recognize the entitlement of management to require post-incident testing in appropriate circumstances – where the harm caused (or the potential harm) is material and there is no explanation for the incident besides the employee’s conduct – is not to discount the employee’s rights to privacy and physical non-intrusion. It is to say, in the balancing of competing interests, that where a significant accident or near miss has occurred, and there is no reasonable explanation for the employee’s conduct that caused the accident or near miss, then the employer’s interest in the safety of employees in a safety sensitive workplace trumps the individual employee’s rights not to be tested in trying to determine the cause of the incident. The reason for this conclusion is not just the scale of the damage that was caused, for which an explanation is needed. It is also the reasonable possibility or likelihood of more serious harm being caused by the employee, if the employer’s reasonable investigation cannot exclude the possibility that the cause of the incident was the employee’s drug or alcohol impairment.

The [employee] appears to be of the view that because he admitted at the time that he had made an error that should have been the end of the matter. However, that surely cannot be the case, as otherwise, an employee who actually was under the influence of drugs or alcohol but did not show any signs of impairment, could simply avoid drug or alcohol testing by simply stating “I made a mistake, sorry”.

In commenting on the nature of the inquiry undertaken by the employer, arbitrator McPhillips observed that when the supervisor went through the checklist with the employee following the incident, the employee was provided with every opportunity to explain what had occurred. The supervisor “covered all possible and potential explanations for the incident and his inquiry cannot in any way be characterized as cursory or perfunctory. There was also no rush to judgment on the part of [the supervisor] as can be seen from the fact that he initially recommended against testing (and allowed the [employee] to continue to work as a result of applying a “reasonable cause” test to the situation.”

It was only later that morning that others became involved and the decision to test was made.

This was not the case where there was a reactive and instantaneous decision made to require a drug and alcohol test of an individual without any clear linkage being established between the employee’s actions and the incident. In my view, the employer collected all the information it could and assessed all possible causes and took more than a mere “mechanistic check all the boxes” approach. There was a reasonable determination made that the [employee’s] actions caused the incident and consideration was given to whether establishing the condition of the [employee] would assist in the investigation into the cause of the incident. On that basis, it is concluded that the nature of the inquiry undertaken here by the employer cannot be properly criticized.

In concluding that the employer’s decision to test had been justified, arbitrator McPhillips noted that

Decisions with respect to post-incident testing are often made in a very time sensitive environment and generally under significant pressure. As a result, arbitration boards must be hesitant in being too aggressive in substituting their own assessments for those made by individuals who were present in the actual moment. [As was observed elsewhere], “one must be careful not to parse too finely the judgments made by employers in their attempts to address the potential for such damages, which are a real and substantial concern”, and as stated in another case, “arbitrators should also recognize that managers on the scene are in a preferential position to assess the need for testing as part of an investigation of safety incidents, and that these decisions must be made in ‘real time’.