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

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
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

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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