An apprentice painter working on the LNG Canada project in Kitimat has been awarded $2,000 in damages after being subjected to an unjustified drug and alcohol test, according to a recent arbitration ruling.
鈥淚 declare that the grievor鈥檚 right to privacy and bodily integrity was violated,鈥� arbitrator Jitesh M. Mistry wrote in a decision dated April 10. 鈥淚 order the employer pay damages in amount of $2,000.鈥�
The grievance was brought forward by the International Union of Painters and Allied Trades Local 138 on behalf of Matthew Seward, who rolled his ankle July 3, 2024, while walking to a work area on a gravel pathway. The fall resulted in pain in the back of his ankle and lower calf and was later assessed by a physician, who prescribed rest, ice, compression and elevation.
Despite no physical or behavioural signs of impairment, the employer, Altrad Services Ltd., directed Seward to undergo post-incident drug and alcohol testing. Although he verbally agreed to the test, he declined to provide written consent. The result was clean.
鈥淭he employer ignored the very real possibility that this was an accidental twisted ankle that occurs every day in all walks of life,鈥� Mistry stated.
He accepted Seward鈥檚 account that the incident was due to uneven ground, heat, heavy coveralls and previous wear from sports injuries.
The arbitrator found that the fall did not meet the threshold for a 鈥渟ignificant incident鈥� under the Canadian Model for Providing a Safe Workplace.
鈥淚t cannot be said that an unremarkable accidental twisted ankle met this threshold such that the door should have been opened to potentially invading a worker鈥檚 privacy and bodily integrity,鈥� he wrote.
The decision noted the employer failed to consult any eyewitnesses present at the time of the fall, did not inspect the site, and relied on a checklist approach that Mistry criticized as failing to respect the necessary balance between privacy and safety.
The acting superintendent at the time declined to authorize the testing, stating there were insufficient grounds. Nonetheless, a project manager signed the form authorizing it, concluding the incident had 鈥渢he potential to be very significant.鈥� Mistry said that assessment was speculative.
鈥淭his is an example of 鈥榤ere speculation鈥� that arbitrators have warned against,鈥� he wrote.
The ruling concluded the employer鈥檚 investigation and reasoning did not support the intrusion.
鈥淭esting cannot be justified to eliminate impairment to get to the 鈥榬oot cause鈥� of the incident,鈥� Mistry wrote. 鈥淭here needs to be some sufficient aberrant, unexplained conduct, that sufficiently raises the probability that the incident was due to something beyond human error alone.鈥�
The decision also orders Altrad to remove all records of the test from Seward鈥檚 personnel file.
