Westcan truck driver loses challenge over drug and alcohol testing

by Today's Trucking

Truck driver Randall Phillips has failed in a legal bid to challenge Westcan Bulk Transport’s random drug and alcohol testing program.

Phillips had argued the fleet shouldn’t be able to suspend him for refusing to submit to random testing, and he was also looking for compensation in the form of lost wages.

drug testing sign
(Photo: iStock)

But an Alberta court has found that random drug and alcohol testing is “not an unconscionable term” – and that Westcan would also be justified in unilaterally imposing random testing on drivers even if Phillips’ contract did not expressly permit such tests.

“When he accepted his most recent offer of employment from Westcan, in October 2015, both Mr. Phillips and Westcan understood and agreed that it was a condition of Mr. Phillips’ employment that Westcan would randomly test him for drugs and alcohol,” Alberta Justice GS Dunlop concludes in a published decision.

“Random drug and alcohol testing is not an unconscionable term in an employment agreement for a driver hauling dangerous goods over long distances, without supervision.”

Even if Phillips had a contract that didn’t expressly permit the fleet to conduct random testing, Westcan would be justified in imposing that testing because of enhanced safety risks, he adds.

Phillips didn’t take issue with the testing methods, or with the dangers of operating machinery while impaired.

Agreed to policies

“When Mr. Phillips accepted Westcan’s offer of employment in October 2015, he expressly agreed to be bound by Westcan’s policies and he knew those policies included random drug and alcohol testing for drivers, because he had been told that in the expectation agreement he signed in 2015, and because he had previously participated in the operations training program in 2013 during which he correctly answered a question about drug and alcohol testing,” the ruling notes.

Westcan has conducted random drug and alcohol tests for employees in safety sensitive positions since at least 1999. Phillips joined the fleet as an employee in December 2013, left in the fall of 2015, and then returned in October 2015.

While the fleet had filed five affidavits from four experts, amassing 305 pages in all, the court decided that information wasn’t necessary for the case.

Phillips had argued the random testing would be prohibited – citing a case involving Irving Pulp and Paper, which focused on the need for evidence of enhanced safety risks to justify testing. Westcan said its relevant test comes from Entrop vs. Imperial Oil.

Irving was a judicial review of an arbitrator’s decision regarding random drug and alcohol testing unilaterally imposed in a unionized workplace. Entrop was a judicial review of a human rights board of inquiry decision regarding random drug and alcohol testing unilaterally imposed in a non-union workplace,” the justice concludes. “Neither case addresses the enforceability of an express contractual provision permitting an employer to randomly test an employee for drugs and alcohol.”

“The latest ruling provides helpful direction to a company with similar safety-related work that wanted to move into random testing,” the Canadian Trucking Alliance (CTA) in a related briefing.

“This latest ruling – combined with a similar car (Autocar Connoisseur) before the Federal HR tribunal, which stated that drivers can all be covered with a random program no matter where they operate — further bolsters carrier rights to enforce, as well as implement, random testing for drivers.”

Smoke Screen: Testing remains in a legal vacuum

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