Ontario Labour Relations Board finds employer cannot use results of post-incident drug test to suspend or dismiss employee

October 19, 2023

A recent decision of the Ontario Labour Relations Board found that the Employer could not use the results of a post-incident drug test to suspend or dismiss the employee.

The Grievor reversed a vehicle into the hitch of a trailer damaging the door of the vehicle. The incident analysis, as conducted by the company, indicated that there were various causes for the accident. The Grievor was facing towards the sun, the trailer was in his blind spot, and the other employees in the vehicle did not act as spotters as was required, There were also no resulting injuries and only minor damage to the vehicle. After the accident, and prior to a full investigation, the Grievor was required to provide a bodily sample. The bodily sample tested positive for metabolites of cannabis. Before the Board, the Grievor testified that he had consumed cannabis while off-duty the evening before the accident. Given the test results, the Grievor was subsequently suspended and terminated from his employment, even though there was no evidence that the consumption of cannabis was a contributing cause of the accident.

The union argued that the Grievor was subjected to unreasonable drug testing and was wrongfully terminated. The Vice-Chair agreed, finding that the company could not rely on the test results because they were improperly obtained. The Vice-Chair made this determination for two reasons.

First, the Vice-Chair reviewed the caselaw surrounding post-incident drug testing, identifying key principles in the jurisprudence, such as:

• employers must balance the interest in a safe workspace against the privacy interests of employees;
• the context and circumstances of the incident must reasonably warrant testing;
• the presence or absence of a legitimate explanation for the accident is relevant;
• the conduct of the employer (for example, allowing a worker to drive home following an incident) should be taken into account; and
• trivial events do not justify testing.

In light of these principles, and the facts of the case, the Vice-Chair determined that the testing was unwarranted. He described the incident as “unremarkable”, noting the minor damage and the absence of any injuries, the fact that the Grievor had performed that same manoeuvre earlier that day, that the Employer permitted the Grievor to drive home that day, and the absence of pylons around the trailer hitch, even though they had previously been placed there. As a result, the facts surrounding the incident did not reasonably justify drug testing.

Second, the Vice-Chair reviewed the Employer’s testing policy. The policy, properly interpreted, allowed for post-incident testing in the event of a serious incident or less serious incident where there was significant potential for more serious consequence. However, the policy did not provide for automatic testing after any incident. The incident involving the Grievor did not reach the threshold of a serious incident. The Vice-Chair also found that while the policy allowed for testing upon the request of the project owner, further investigation would still have to be conducted by the Employer to determine whether the incident was serious or had the potential to be serious such as to justify drug testing. However, no such investigation was ever conducted. In conclusion, the Vice-Chair found that the test results were improperly obtained and could not therefore be relied upon by the Employer with respect to the suspension and/or discharge of the Grievor.

In light of this decision, and the prevailing jurisprudence, workplace parties should be aware that post-incident drug and alcohol testing must both be consistent with the provisions of prevailing policies and should only be undertaken when an incident is sufficiently serious, and when the overall circumstances reasonably warrant a test. When the provisions of the policy are not properly applied and/or there is not a consideration of the circumstances of the particular case, testing may be found to be unreasonable.

Craig Flood of Koskie Minsky LLP represented the Union in this matter.

International Brotherhood of Electrical Workers, Local 530 v Mellon Inc., 2023 CanLII 79409 (ON LRB), <https://canlii.ca/t/jzxft>

Authored by Apollonia Mastrogiacomo, Articling Student

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