Drug Testing: Impairment?

Posted by Johannes Schenk on October 19th, 2005 — Posted in Labour Law

The results from alcohol tests are easier to work with than drug test results because of the more direct correlation between alcohol levels and impairment. In the case of testing for drugs you often see the argument that system drug levels do not necessarily correlate to present impairment. Having a pharmacology background I have had some difficulty with this position. There are many conclusions in fact and certain well founded inferences that can be drawn from a positive drug test, none of which fit in well with a safety sensitive work environment. I question the expert evidence underlying the notion that drug levels cannot be correlated to behavioral effect.

Broader considerations also follow on a positive drug test. As an employer can you accept the risk of an employee with measurable drug levels working in a dangerous environment? As an employee do you really feel that confident that you are 100% under such circumstance? I have often wondered (and not researched) what the effect of management continuing to employ an employee with a measured level of a drug in their system would do to any given insurance contract or warranty in effect at the time of the positive drug test. What does such a test result do in terms of C-45 liability? No doubt we will get an answer to these question at some future time.

I recently came across an Alberta arbitration, Suncor Energy Inc. v. Communications, Energy and Paperworkers Union v. Local 707 (Pearson Grievance), [2004] A.G.A.A. No. 35, that deals with the issue of positive drug test results and impairment or lack thereof.

Briefly, the grievor was on a return to work agreement for a previous drug related incident. He was caught again with a positive marijuana test and was terminated. The grievor had admitted to continuing use of marijuana. The parties also agreed that the positive marijuana test did not indicate that the grievor was impaired at the time of the test ( I don’t know what my pharmacology profs would have to say about that?). Arbitrator Jones noted that the employer terminated the grievor because, on the facts, the employer could not be sure that the grievor would not at some time be impaired at work. The grievance was then dismissed on that basis.

The case is interesting because it upholds a dismissal on the basis that you can’t be sure that an employee with a positive drug test result will not be impaired at some time in the future. This sidesteps the commonly argued defence that a positive drug test doesn’t indicate impairment.

Employers, unions and employees should take note of the reasoning and result of this case.

Alberta: Picketing of Employee Residences

Posted by Johannes Schenk on October 15th, 2005 — Posted in Labour Law

The Alberta Court of Queen’s Bench recently considered the matter of picketing of employee residences in Telus Communications Inc. v. Telecommunications Workers Union, 2005 ABQB 719. I recently posted on this issue as it had been dealt with by the BC Supreme Court.

Telus brought on a motion to amend the original injunction to prohibit picketing of employee residences on the same basis that the order had been granted in the BC case.

The Alberta QB Court distinguished the situation before it from the BC case in that the Alberta conduct was not as egregious as the BC conduct. In addition, Madam Justice Hughes disagreed with Justice Burnyeat of the BC Supreme Court stating:

Beyond that, however, I can not agree with Burnyeat J.’s view at para. 19 that “… picketing of homes is merely an unlawful interference with the person’s enjoyment of his or her ownership or occupation of property.” In my view the Supreme Court of Canada in Pepsi-Cola, held that picketing at private residences is prima facie legal, provided that there is no unlawful conduct associated therewith.

The Alberta QB Court held that Telus could not enjoin picketing of its employees’ residences because the conduct did not affect the business operations of Telus in an actionable manner. The Court went on to state that the indvidual employees whose residences were picketed could ask for an injunction and commented that such a process would be duplicative of the present hearing. The Court also noted that the TWU agreed that its members should not be committing trespass or make excessive noise.

The Court then amended the original injunction as follows:

  • Residential picketing of the homes of all Telus employees is limited to the
    hours of 9 a.m. to 4 p.m.;
  • There is to be no contact with children of the Telus employees when
    picketing occurs as stated above;
  • Picketers must be at least 5 feet on either side of any entrance or exit to the
    residence of any Telus employee picketed;
  • There will be no excessive noise, shouting or swearing;
  • Picketing will be limited to no more than 4 picketers; and
  • No trespassing, including no littering.

Although it appears that the two sides to this dispute are moving toward a resolution of the job action, the case is interesting for the purpose of comparing the approach taken by the BC and Alberta Courts on the matter of residential picketing.

Workplace Investigations

Posted by Johannes Schenk on October 14th, 2005 — Posted in Employment Law

Diane M. Pfadenhauer of Strategic HR Lawyer posts on workplace investigations. In many workplace situations effective “in house” investigation can be a difficult task due to internal management politics and workforce perception. Depending on the issue, purpose and the players involved an internal investigation may be totally ineffective. Ms. Pfadenhauer makes a good case for the involvement of an outside third party in workplace investigations in such instances.

No Strike Pay for BC Teachers

Posted by Johannes Schenk on October 13th, 2005 — Posted in Labour Law

The BC Supreme Court, in an October 9th, 2005, hearing found the BC Teachers Federation in contempt of an October 6, 2005, BC Labour Board order, which required the BCTF to cease its job action. The Court held the matter over to October 13, 2005, for the purpose of determining the appropriate sanction and the BCTF’s ability to pay a penalty. The order issued on the 13th enjoins the BCTF (and related entities) from using its assets to pay the teachers in relation to activities that are in breach of the Labour Board order for a period of 30 days.

Delaware Supreme Court: Anonymous Blogger Stays Anonymous

Posted by Johannes Schenk on October 12th, 2005 — Posted in Municipal Law

The ability to blog anonymously has changed the complexion of open public complaint. Negative broadcast can now reach a large audience and from out of nowhere. Anonymity makes the matter all the harder to deal with. On the other hand, open expression is only possible with the protection offered by anonymity, or so the anonymity proponents argue.

This tension was recently examined by the Delaware Supreme Court in John Doe no. 1 v. Cahill et al.,. In that case an anonymous blogger had posted negative comments about a municipal council member. The council member sued for defamation and requested the name of the blogger in the discovery process. The Superior Court granted an order giving access to the blogger’s identity on a standard that would commonly be applied to reveal the identity of an individual in the discovery process. The Delaware Supreme Court reversed that ruling on the basis that the First Amendment Right to anonymous speech required the demanding party to meet a higher standard before revealing the blogger’s identity. The Court applied a prima facie summary judgement standard. The Court essentially said that it wasn’t enough to sue on the basis of mere allegations and that you had to have a real substantive case of defamation before the Court would consider granting an order to reveal the identity of the anonymous blogger.

Although Cahill is decided in a muncipal context the same reasoning ought to apply in other situations, for instance in corporate or employment law matters.