Resource Development Trades Council of Newfoundland v. Labrador, 2019 NLSC 68

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Resource Development Trades Council of Newfoundland and Labrador v. Muskrat Falls Employers' Association Inc. , 2019 NLSC 68 Date : March 22, 2019 Docket : 201801G5254 Between: Resource Development Trades Council of Newfoundland and Labrador Applicant And: Muskrat Falls Employers' Association Inc. Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 1, 2019

Summary: The Applicant Union applied for judicial review and an Order setting aside an Arbitral Award. The Arbitration was of a dispute related to a demand for a drug test issued to a worker on a safety-sensitive site. The Application was dismissed. Appearances: Dana K. Lenehan, Q.C. Appearing on behalf of the Applicant Stephanie M. Sheppard Appearing on behalf of the Respondent

Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick , 2008 SCC 9 ; Canada (Minister of Citizenship and Immigration) v Khosa , 2009 SCC 12 ; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 ; N.L.N.U. v. Newfoundland & Labrador (Treasury Board) , 2011 SCC 62 ; Muskrat Falls Employers’ Assn. Inc. v. Resource Development Trades Council of Newfoundland & Labrador , 2015 NLTD(G) 150; Irving Pulp & Paper Ltd. v. CEP, Local 30 , 2013 SCC 34 ; Canadian National Railway and CAW, Local 100 (CAW12-2011-00071), Re. , [2013] C.L.A.D.

No. 248, 2013 CarswellNat 273 (Arb.) STATUTES CONSIDERED: Labour Relations Act , R.S.N.L. 1990, c. L-1 ; Human Rights Code , R.S.N.L. 1990, c. H-14 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D REASONS FOR JUDGMENT Boone, J. : INTRODUCTION [ 1 ] The Applicant seeks judicial review of, and an Order setting aside, an Arbitral Award that arose out a grievance filed on behalf of a worker (the “Grievor”) who was the subject of a drug test that demonstrated use of methamphetamine, a substance prohibited for workers on his project site. The drug test result is not in issue.

Rather, the issue raised by the grievance and in the arbitration hearing was whether the employer policy validly supported the demand that the Grievor undergo a drug test. For the reasons that follow, I have decided to dismiss the Application. [ 2 ] The Grievor worked as a Surveyor’s Assistant on the project for construction of the Muskrat Falls hydroelectric dam and related structures. The construction project on the site was declared a special project by Newfoundland and Labrador Regulation 67/13 (the “Special Project Order”), which was promulgated pursuant to the Labour Relations Act , R.S.N.L. 1990, c.

L-1 . [ 3 ] Pursuant to the Special Project Order, the Applicant and Respondent are designated as the labour and employer associations, respectively, to represent trade unions and contractors working on the site. The parties entered into a Collective Agreement governing labour relations on the Project. [ 4 ] Nalcor is considered the owner of the Project and as such has control over the Project site.

The parties agree that the Nalcor Energy Lower Churchill Project Drug and Alcohol Standard (the “Standard”) applies on the Project site and to all workers and contractors allowed access to the site. [ 5 ] The Standard prohibits the misuse of medications and the use of illicit drugs on the Project site. The Standard expressly provides that it is a breach for a worker to test positive for illegal drugs and that such a breach may result in revocation of site access and/or termination of employment. [ 6 ] Nalcor authorized a search of the Project site by a security team with scent-trained dogs.

The right of Nalcor to authorize such a search is not in dispute. [ 7 ] The security team conducted a search of a pickup truck used to transport workers around the site, which the Grievor had just boarded along with the driver and another worker. The Grievor sat in the back, the other worker in the front. The truck had just been used to transport three other workers to work on another part of the site. Evidence before the Arbitrator demonstrated that 32 workers had been transported in the truck in the 24 hours preceding the search.

The dog used by the security team detected the presence of drugs in the seat pocket on the back of the driver’s seat, adjacent to the seat that the Grievor had just occupied. The security team found a bag with six white pills in the seat pocket. Later analysis of those pills determined that they were methamphetamine, an illegal drug. [ 8 ] The security team directed the three occupants of the truck to a site safety trailer where they were asked to complete statements regarding the incident. After some time, site safety officers advised the three workers that they would have to submit to a urinalysis.

At some point, the Grievor texted a supervisor and appeared to indicate that he anticipated that he would have to undergo a urinalysis. However, the evidence before the Arbitrator did not establish whether this text preceded the demand for urinalysis. The demand for urinalysis was made before the test on the pills was completed. [ 9 ] A preliminary test on the Grievors’s urine sample returned a “non-negative” result. Ten days later the final test result demonstrated the sample as positive for methamphetamine and amphetamine.

The samples of the other two workers in the truck with him were determined negative on preliminary analysis and not subjected to further analysis. The workers who had been in the truck before the Grievor were not subject of a demand for urine or any other sample. [ 10 ] The Grievor was placed on administrative leave pending an assessment by a substance-abuse professional and has been denied site access ever since. The parties do not agree whether this job action amounted to termination or was disciplinary in nature. [ 11 ] The Applicant filed a Grievance. The employer, Astaldi, denied the Grievance.

The parties submitted the dispute to arbitration

pursuant to the Collective Agreement. The Arbitration and Award [ 12 ] Arbitrator Wayne Thistle, Q.C. heard six days of evidence from 16 witnesses and one full day of argument from counsel. The parties submitted extensive briefs of argument with reference to a substantial body of case law and arbitral jurisprudence. [ 13 ] The Applicant advanced four arguments before the Arbitrator regarding the drug test. First, it took the position that the Standard was unreasonable insofar as it identified spatial proximity to prohibited drugs as a ground for a drug test demand on a worker.

Second, the Applicant impugned the failure of the employer to give notice to workers of this part of the Standard. Third, it argued that the employer failed to comply with the Standard by not advising the Grievor of the reason for the urinalysis demand. Finally, the Applicant argued that the test results could not support job action because there were no reasonable grounds for the test demand. [ 14 ] The Arbitrator denied the Grievance. He considered and dismissed each of the Applicant’s four arguments for the following stated reasons.

First, he found at Page 19 that “elementary common sense dictates that reasonable grounds [to demand testing] includes the presence of alcohol, drugs or drug paraphernalia in the vicinity of the worker or in the area where the worker worked.” Second, he found that the absence of a reference in the Site Handbook to the proximity to drugs as a reasonable ground for a drug test demand “does not mean workers are not aware of the implications of being in the vicinity of drugs as satisfying the basis for reasonable grounds to require a drug test.” Third, he found that a text message exchange between the Grievor and his supervisor demonstrated that the Grievor was aware that the apparent detection by drug dogs of a prohibited substance in the truck meant that he would have to take a drug test.

Finally, he considered the balancing of interests required in considering whether the test demand was reasonable and concluded at Page 32 that “[h]e was found with drugs in his system, drugs which could have caused a safety problem for him and his co-workers. There is no difficulty in finding that the safety interests trumped his right to privacy.” [ 15 ] The Arbitrator also determined that the Grievor had not been terminated “in a disciplinary sense” and that he was still on indefinite unpaid administrative leave.

His decision in that regard impacted the allocation of the burden of proof before the Arbitrator, as if he had determined that the Grievor had been terminated then the burden of proof would have been on the employer to show cause for termination. [ 16 ] The Applicant Union has applied for judicial review and an Order setting aside the award of the Arbitrator. For the reasons that follow, I have determined to dismiss the Application. Issue 1.

The issue for determination on this judicial review is whether the Arbitrator’s decision that the drug test demand, and consequent job action, was based upon proper application of a reasonable policy should be set aside on the appropriate standard of judicial review? Standard of Review [ 17 ] This is a review of the decision of a consensual labour arbitrator. Consistent with the overwhelming direction from precedent, the parties agree that review of the Arbitration Award is to be conducted on a standard of reasonableness, as articulated by the Supreme Court of Canada in Dunsmuir v.

New Brunswick , 2008 SCC 9 ; Canada (Minister of Citizenship and Immigration) v Khosa , 2009 SCC 12 ; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 ; and N.L.N.U. v.

Newfoundland & Labrador (Treasury Board) , 2011 SCC 62 . [ 18 ] The reasonableness standard was described in the following manner in the majority decision in Dunsmuir , at paragraph 47 : 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 19 ] As stated by Orsborn, J. in Muskrat Falls Employers’ Assn. Inc. v. Resource Development Trades Council of Newfoundland & Labrador , 2015 NLTD(G) 150 at paragraph 17: “This passage suggests that a reviewing judge is to assess "mostly" the process by which the tribunal reached its decision.

Secondarily, the judge is to assess the outcome itself against what is considered to be a range of "possible acceptable outcomes.” [ 20 ] As Orsborn, J. recognized, the process of review for reasonableness does not proceed in two stages; one to examine the reasons and the other the outcome, but proceeds fluidly, as described by Abella, J. in N.L.N.U. , at paragraph 14 : “It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” Application to This Case [ 21 ] The employer policy under review by the Arbitrator was the Drug and Alcohol Standard , which applied to all workers on the project site.

The relevant parts of the Standard are those that include the grounds for demand of a drug test.

Section 10.2 provides for the requirement for testing: 10.2 REASONSBLE GROUNDS A supervisor or manager of a Worker must request that a Worker submit to drug and alcohol testing under the requirements identified in

Requirements for Drug and Alcohol Testing Programs (section 11) if the supervisor or manager and the next level of management or asecond supervisor, if present at the Site, have Reasonable Grounds to believe that the Worker is or may be unable to work in a safemanner because of the use of drugs or alcohol. Reasonable Grounds for testing include, but are not limited to:

a) The odour of drugs or alcohol detected on or in the vicinity of the Worker;

b) The observed use of a substance by a Worker; or

c) Where the Worker’s appearance, performance and/.or behavior suggest the Worker is under the influence of drugs or alcohol. [22] However, the Standard also defines a term “Reasonable Grounds/Reasonable Cause” to include: … information established by the direct observation of the Worker’s conduct or other indicators, such as the physical appearance of theWorker, the smell associated with the use of alcohol or other drugs on his or her person or in the vicinity of his or her person, his or herattendance record, circumstances surrounding an Incident or Near Miss, and the presence of alcohol, drugs or drug paraphernalia in thevicinity of the Worker or the area where the Worker worked. [23] In this case, the only part of the Standard under review by the Arbitrator was the inclusion of the presence of drugs in thevicinity of the Worker as a reasonable grounds to demand a drug test. [24] The parties agrees that the source of the authority for Nalcor and its contractors, represented by the Respondent Association, toimpose the Nalcor Standard on the unionized employees on site is the so-called management rights clause in the Collective Agreement. [25] Although the management rights clause allows an employer to adopt rules applicable to the workplace, its right to do so is notunfettered. [26] The Supreme Court of Canada in Irving Pulp & Paper v.

CEP, Local 30, 2013 SCC 34 has endorsed the so-called KVPprinciples as setting the appropriate framework for the analysis of management rules and policies governing the workplace: 24 The scope of management's unilateral rule-making authority under a collective agreement is persuasively set out in Lumber &Sawmill Workers' Union, Local 2537 v. KVP Co. (1965), (ON LA), 16 L.A.C. 73 (Ont. Arb.) (Robinson).

The heart ofthe "KVP test", which is generally applied by arbitrators, is that any rule or policy unilaterally imposed by an employer and notsubsequently agreed to by the union, must be consistent with the collective agreement and be reasonable (Donald J.M. Brown and DavidM. Beatty, Canadian Labour Arbitration (4th ed. (loose-leaf)), vol. 1, at topic 4:1520). 25 The KVP test has also been applied by the courts. Tarnopolsky J.A. launched the judicial endorsement of KVP in MetropolitanToronto (Municipality) v. C.U.P.E. (1990), (ON CA), 74 O.R. (2d) 239 (Ont.

C.A.), leave to appeal refused, [1990] 2S.C.R. ix (note) (S.C.C.), concluding that the "weight of authority and common sense" supported the principle that "all company ruleswith disciplinary consequences must be reasonable" (pp. 257-58 (emphasis in original)). In other words: The Employer cannot, by exercising its management functions, issue unreasonable rules and then discipline employees for failure tofollow them. Such discipline would simply be without reasonable cause.

To permit such action would be to invite subversion of thereasonable cause clause. [p. 257] 26 Subsequent appellate decisions have accepted that rules unilaterally made in the exercise of management discretion under acollective agreement must not only be consistent with the agreement, but must also be reasonable if the breach of the rule results indisciplinary action (Charlottetown (City) v. Prince Edward Island (Board of Arbitration) (1997), (PE SCAD), 151Nfld. & P.E.I.R. 69 (P.E.I. C.A.), at para. 17; see also Western Avalon Roman Catholic School Board v. N.A.P.E., 2000 NFCA 39, 190D.L.R. (4th) 146 (Nfld.

C.A.), at para. 34; St. James Assiniboia Teachers' Assn. No. 2 v. St. James Assiniboia School Division No. 2,2002 MBCA 158, 222 D.L.R. (4th) 636 (Man. C.A.), at paras. 19-28). 27 In assessing KVP reasonableness in the case of unilaterally imposed employer rules or policies affecting employee privacy,arbitrators have used a "balancing of interests" approach.

As the intervener the Alberta Federation of Labour noted: Determining reasonableness requires labour arbitrators to apply their labour relations expertise, consider all of the surroundingcircumstances, and determine whether the employer's policy strikes a reasonable balance.

Assessing the reasonableness of an employer'spolicy can include assessing such things as the nature of the employer's interests, any less intrusive means available to address theemployer's concerns, and the policy's impact on employees. [I.F., at para. 4] 28 In the earliest privacy cases using a balancing of interests approach, arbitrators generally found that employers could only exercisea unilateral management right to search an individual employee's personal effects if there was a reasonable suspicion that the employeehad committed theft.

Universal random searches — that is, random searches of the entire workforce — were rejected as unreasonableunless there was a workplace problem with theft and the employer had exhausted less intrusive alternative measures for addressing theproblem (Morton Mitchnick and Brian Etherington, Labour Arbitration in Canada (2nd) ed. 2012), at pp. 308-9; Brown and Beatty, attopic 7:3625). 29 The balancing of interests approach was subsequently applied in assessing the reasonableness of unilaterally imposed employerpolicies calling for universal random drug or alcohol testing of all employees performing safety sensitive work.

Universal random testing

refers to the testing of individual employees randomly selected from all or some portion of the workforce. As in the search cases,arbitrators rejected unilaterally imposed universal random testing policies as unreasonable unless there had been a workplace problemwith substance abuse and the employer had exhausted alternative means for dealing with the abuse. [27] The Arbitrator adverted to the KVP principles, as amplified for use in the context of drug tests in safety sensitive situations bythe Supreme Court of Canada in Irving Pulp & Paper Ltd.

He stated his conclusions in the following passages: THE KVP CRITERIA AND THE DRUG AND ALCOHOL STANDARD I have reviewed the criteria in the KVP as applied to the facts of the instant case and can find nothing which would serve as a basis forconcluding a portion of the policy is unreasonable. While the Handbook and Orientation are intended to explain aspects of the policies toworkers, the absence of “in the vicinity of drugs” in that document and process does not mean workers are not aware of the implicationsof being in the vicinity of drugs as satisfying the basis for reasonable grounds to require a drug test.

THE BALANCING OF THE EMPLOYER’S LEGITIMATE SAFETY INTEREST WITH THE EMPLOYEE’S DIGNITYAND RIGHT TO PRIVACY In the instant case, the Grievor’s testing non-negative and then positive for drugs has made this an issue on which it is easy to reach aconclusion. He was found with drugs in his system, drugs which could have caused a safety problem for him and his co-workers. Thereis no difficulty in finding that the safety interests trumped his right to privacy. [28] The reasons as stated by the Arbitrator are not the kind of analysis required by the jurisprudence.

Even in a safety-sensitivesetting an employer rule based on management rights must be reasonable, determined by whether it strikes a balance between theemployer’s requirement to provide a safe workplace and the employee’s right to privacy.

As noted in Irving Pulp & Paper, previousarbitral case law has considered this balancing of interests in numerous situations involving drug testing: 30 In a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety sensitivepositions without having to show that alternative measures have been exhausted if there is "reasonable cause" to believe that theemployee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident, orwhere the employee is returning to work after treatment for substance abuse. (See Esso Petroleum Canada v.

C.E.P., Local 614 (1994), (BC LA), 56 L.A.C. (4th) 440 (B.C. Arb.) (McAlpine); Canadian National Railway v. CAW-Canada (2000), (CA LA), 95 L.A.C. (4th) 341 (Can. Arb.) (M. Picher), at pp. 377-78; IWA-Canada v. Weyerhaeuser Co. (2004), (BC LA), 127 L.A.C. (4th) 73 (B.C. Arb.) (Taylor), at p. 109; Navistar Canada Inc. v. C.A.W., Local 504 (2010), 195L.A.C. (4th) 144 (Ont. Arb.) (Newman), at pp. 170 and 177; Rio Tinto Alcan Primary Metal v. CAW-Canada, Local 2301 (2011), 204L.A.C. (4th) 265 (B.C.

Arb.) (Steeves), at para. 37(b)-(d).) [29] The privacy interests of an employee engaged by a blood or urine or even breath sample demand are interests of a high order. Violation of those rights is extraordinarily intrusive and therefore entitled to significant protection. These privacy interests must beaccorded greater weight in the balance than those engaged by a search of the person or personal effects of a worker.

The Supreme Courtnoted the degree of intrusiveness involved in drug testing, and the degree of protection accorded to the interest to be free of a demand forsuch testing in Irving Pulp & Paper at paragraph 50: 50 … Early in the life of the Canadian Charter of Rights and Freedoms, this Court recognized that "the use of a person's bodywithout his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his humandignity" (R. v. Dyment, (SCC), [1988] 2 S.C.R. 417 (S.C.C.), at pp. 431-32). And in R. v.

Shoker, 2006 SCC 44, [2006]2 S.C.R. 399 (S.C.C.), it notably drew no distinction between drug and alcohol testing by urine, blood or breath sample, concluding thatthe "seizure of bodily samples is highly intrusive and, as this Court has often reaffirmed, it is subject to stringent standards andsafeguards to meet constitutional requirements" (para. 23). [30] The Arbitrator’s reasons in this case do not explicitly set out the basis for his conclusion that there is nothing in the policy thatcould be considered unreasonable on application of KVP principles.

Further, his conclusion that the Grievor’s positive drug test trumpedhis right to privacy is indicative of ex post facto reasoning that is not supported by the case law. Whether a policy providing for a drugtest demand is balanced must be considered at the point of demand, not depending on the test result. If it were otherwise, every policyallowing demand for a test which is later reported as positive would be considered reasonable. [31] That said, the Arbitrator did expressly find that the Nalcor Standard was reasonable within the meaning of the KVP criteria.

Inso doing, he noted that the counterweight against which the employee’s privacy rights must be balanced is the employer’s legitimatesafety concern. In considering the question of reasonableness, he expressly stated that the balance should be conducted in the context ofthe facts of the case. The facts of this case include that the Grievor was, by any viable definition, in the vicinity of materials that weresuspected to be drugs. [32] The Standard does not provide a definition of “vicinity,” or circumscribe application of the concept in any manner.

It may bethat if the employer or its agent were to utilize a loose or broad definition of vicinity, then the Nalcor Standard could be appliedunreasonably in a manner that would not be justified by legitimate safety concerns. During argument, the Applicant raised an exampleillustrating the possible application of the Standard suggesting that it could be used to justify a demand for a drug test on tens, or evenhundreds, of employees if drugs were found in a lunchroom during a meal. The Respondent agreed that such an application of the policywould be unreasonable. One could posit many other unreasonably extended

definitions of vicinity. However, in the case before thisArbitrator the possibility of unreasonable application did not need to be considered, and he did not have to consider the extreme boundsof the meaning of vicinity. He concluded that the Standard in the context of the facts of the case before him was reasonable. [33] The arbitral jurisprudence includes recognition that the determination of KVP reasonableness in respect of a drug testing policyis one that turns on the particular facts of each case. In Canadian National Railway and CAW, Local 100 (CAW12-2011-00071), Re.,[2013] C.L.A.D. No. 248, 2013 CarswellNat 273 (Arb.), Arbitrator Pitcher put it this way:

14 I consider it important to recognize that the determination of whether there is or is not reasonable cause to require an employee to undergo a drug test is one that will inevitably involve a degree of subjectivity and that each case must turn on its own particular facts. Reasonable persons may or may not agree on what conclusions should or might be drawn from an individual's outward appearance or other surrounding facts. However, in a highly safety sensitive work place, some degree of deference must be given to supervisors who exercise that judgment.

It is obviously not necessary that they be proved correct as to their concern. In my view it is sufficient that they or a delegate have sufficiently observed the individual employee, have directed their mind to the person's physical appearance, including such factors as their speech or gate, have weighed any other relevant information at their disposal and ultimately have exercised their judgement in good faith. Other relevant information could, for example, include the presence of a drug or drug paraphernalia.

Moreover, in keeping with the Company's policy, wherever practicable, a supervisor who contemplates directing an employee to undergo drug and alcohol testing based on his or her observations should seek the benefit of a second opinion from another supervisor or other person in a position to observe the employee in question. [ 34 ] I find that the Arbitrator considered the issue raised by the Grievance when he determined that the Nalcor Standard providing for a drug test demand based on a worker’s vicinity to drugs was reasonable as applied to the facts of the case before him.

He adverted to the case law, in particular KVP and Irving Pulp & Paper , as the source of the principles governing his reasoning and conclusions. His decision was within the range of reasonable outcomes raised by the facts of the case. His decision in that regard was, therefore, not unreasonable. Notice of the Standard [ 35 ] The arbitral jurisprudence establishes that an employer rule cannot be used to ground disciplinary action unless the employees have notice of the rule and the potential consequences of its breach.

The Board of Arbitration confirmed this proposition as a matter of principle in the KVP case, and it has since been consistently accepted. [ 36 ] The Arbitrator in this case, at Page 18 of the Award, accepted that there was no evidence that workers on the Project site were advised that they could be subject to a drug test demand merely because they were found in the vicinity of drugs. [ 37 ] Nevertheless, the Arbitrator found that employees on a dry site such as the one under consideration are aware that there are certain indicia used by the Employer when determining whether to demand a drug test.

He concluded, as previously noted, that common sense would lead an employee to the conclusion that “reasonable grounds includes the presence of alcohol, drugs, or drug paraphernalia in the vicinity of the worker or in the area the worker worked.” [ 38 ] In the course of reaching this conclusion, the Arbitrator referred to previous arbitral awards that found it to be disingenuous for an employee to rely on lack of notice that the employer would demand a drug test when the employee attends at work impaired.

The conclusion that common sense would dictate that an employee who shows up for work with signs of impairment might be subject to a drug test demand with potential disciplinary consequences seems unassailable. In my view, the conclusion that the same can be said about being found merely in the vicinity of drugs is not as obvious. However, the Arbitrator so found, and he did so after reviewing the relevant facts.

Decisions of this nature fall squarely within the expertise of labour arbitrators and within the jurisdiction accorded to them in furtherance of the goal of expeditious resolution of disputes under a collective agreement. [ 39 ] The Arbitrator concluded that workers would have an expectation of being subject of a drug test demand on drugs being found in vicinity as proximate as this case. He reached his conclusion after considering the submissions of the Applicant, to the effect that explicit notice was required.

He noted arbitral case law that where the employer has reasonable cause to demand a drug test, then failure on the part of the employer to have provided notice of all factors that could be considered reasonable grounds does not extinguish the effect of a positive drug test. [ 40 ] Moreover, there was evidence before the Arbitrator that employees on site orientation and in a Site Handbook are clearly advised that the use of alcohol and illegal drugs is strictly prohibited at the Project site, and there are consequences, including denial of site access and discipline, for failure to comply.

The evidence before the Arbitrator also demonstrated that the Handbook and orientation materials referred expressly to the Nalcor Standard. [ 41 ] The Arbitrator’s decision was consistent with the arbitral case law to which he referred and was supported by the facts in evidence before him. His conclusion that failure of the Employer to provide express notice that vicinity was a ground for a test demand was therefore within the range of reasonable outcomes, and a sufficient answer to the question as to whether notice of the Policy was provided within the meaning of the KVP principles.

Whether the Employer Complied with the Policy [ 42 ] The Union argued before the Arbitrator that the employer failed to comply with the Standard because it did not advise the Grievor of the reason for the urinalysis demand.

The Arbitrator determined the Grievor was aware of the reason for the drug test demand (that a substance appearing to be illegal drugs was found in the truck in which he was a passenger) and, therefore, the failure of the employer to have formally advised him of the reason, as required by the Standard was not fatal to the employer’s reliance on the drug test result to deny the Grievor site access. [ 43 ] The Arbitrator found as fact that the Grievor was aware that the dogs used by the search team were trained to detect drugs, that the dogs had found something in the truck, and anticipated that he would be asked to provide a urine sample for testing because he had been in the truck.

The Arbitrator based these findings on evidence at the hearing, including a text message exchange between the Grievor and his supervisor.

The timing of this exchange relative to the test demand was not established, but it certainly occurred before the Grievor provided the sample. [ 44 ] The Arbitrator did not provide significant reasons for his decision that “[g]iven that the Grievor clearly knew the reason for a drug test, I conclude the failure of a supervisor or manager to provide the worker the reason for the test is not fatal to the revocation of site access.” But, from the manner in which he worded the conclusion, it is clear that he decided that lack of formal, explicit notice was an immaterial technicality given that the employee had effective notice.

[ 45 ] The question whether an employer must comply technically and strictly with workplace policies in order to enforce them is one that falls naturally into the bailiwick of labour arbitrators. The Applicant referred me to arbitral case law that demonstrated an accepted principle that an employer must comply with its own policy in order to rely on that policy for workplace action against an employee.

However, these cases do not establish that arbitrators have determined that compliance must be strict, or that a technical failure to provide formal notice will obviate actions taken against a worker who has effective, subjective knowledge of the reason for employer action. [ 46 ] The Arbitrator’s conclusion that the employer could rely on the drug test result notwithstanding the absence of evidence of formal notice of the reason for the demand falls within a range of reasonable outcomes, and I see no reason to interfere with it.

Whether the Grievor has Been Terminated [ 47 ] The Arbitrator determined that the Grievor had not been terminated “in a disciplinary sense” and that he was still on indefinite unpaid administrative leave. [ 48 ] The action against the Grievor was taken by Nalcor pursuant to the Nalcor Standard and the Worker Site Access Standard. These standards regulate site access and are not part of the Collective Agreement. Discipline can only be effected under the Collective Agreement.

Although the effect of revocation of site access is that the worker cannot report to work, the Arbitrator’s conclusion that the action against the Grievor was not disciplinary makes sense in the context of the overall scheme governing contractor activity and labour relations at the Project site. [ 49 ] Furthermore, the Arbitrator accepted that the Nalcor Standard requiring assessment of a worker for substance abuse intervention following positive evidence of drug use but prior to discipline is consistent with requirements adopted for the protection of workers in previous arbitral decisions and with the requirements of the Human Rights Code , R.S.N.L. 1990, c.

H-14 . These requirements impose obligations on employers, before imposing discipline, to seek accommodation for workers who have failed drug tests. The employer could not discipline the Grievor without first considering whether it could accommodate him by investigating whether he had a substance abuse issue amenable to mitigation through available programs. The Arbitrator’s conclusion that the worker had been negatively impacted by the revocation of Project site access but not subject to discipline was within the range of possible outcomes. DISPOSITION [ 50 ] The Application is dismissed.

The Respondent shall have its costs on Column 3 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D . _____________________________ Daniel M. Boone Justice