Earlier this summer, the Alberta Labour Relations Board published a decision where they dismissed an application from ATCO Electric Ltd to review an earlier ALRB awarded damages to one of their workers.
The worker who won the award began working for ATCO Electric in August 2017.
According to their decision, the ALRB reported that from 2018 through to 2020, this worker was involved in several safety incidents, including the following:
falling asleep while driving and crossing over the center line and entering a ditch, falling asleep while at a safety meeting, driving and spinning out over ice and damaging a power pole, driving over his laptop which he had left on the ground, and operating high voltage breakers without clearing safety risks
The worker apparently was dealing with fatigue and focus deficits. Drug and alcohol testing all came back negative.
ATCO Electric removed the worker from safety-sensitive duties, which consequently also removed him from the standby rotation. They also placed him on work that was administrative or otherwise not safety sensitive while they waited for further assessment.
The worker had no family doctor, so had to go to a walk-in clinic for his initial assessment, which was provided by a medical resident. The resident indicated, after meeting with the worker and review his current medications that there did not “seem to be any red flags indicating a need for motor vehicles nor heavy equipment restrictions”.
Despite this, ATCO Electric kept the worker off safety sensitive work.
He then sought referral to a specialist through the Telus-owned EQ Care, a virtual doctor service. Unfortunately, the person he consulted with through the service said that referrals must come from a family doctor.
ATCO Electric suggested he use their doctor. After a 5-minute visit, that doctor said that he could continue working but only in duties that were not safety sensitive until he could see the specialist, which she could not refer him to, as she was not his family doctor.
While he waited for a family doctor, the worker agreed to a fitness to work assessment through Homewood Health, a third-party health provider contracted by ATCO Electric.
He told the ALRB that as part of this assessment, a registered psychologist completed a confidential psychological report that stated he “had a medical history and symptoms that would likely impact his ability to function within his safety sensitive position”.
The report from the psychologist also said that the worker met the criteria for a “diagnosis of a mental health disorder and concluded that the Grievor was not psychologically fit to work in his safety sensitive work position”. It also recommended therapy and an assessment from a substance abuse expert.
While the worker disagreed with how the psychologist characterized his medical history, by taking out of context his drinking as a teenager, he consented to the substance abuse assessment, as “he wanted to get back to his regular duties and he was worried about potentially losing his job if he did not agree.”
The substance abuse assessment diagnosed with two conditions: a severe substance use disorder (alcohol) and a moderate substance use disorder (drug/cannabis), both of which it said were in early remission.
As a result, the assessment recommended that this worker “obtain a negative substance screen prior to work re-assignment to a safety sensitive position, undergo counselling, and undergo substance testing over the course of 24 months”.
In January 2021, ATCO Electric used this assessment to draft a return-to-work agreement, which they told the worker he must sign before they would place him in a safety sensitive position. The worker told them that he had concerns with the assessment, which he also explained in a phone call to the substance abuse expert.
Despite his disagreement with how he was assessed, he signed the return-to-work agreement “so he could move forward and return to his regular work”.
After signing the agreement, the worker contact his representative from his union, the Canadian Energy Workers Association.
The CEWA filed a grievance with the ALRB, claiming that ATCO Electric’s actions breached the worker’s privacy and human rights and violated the collective agreement because they “obtained improper medical evaluations and diagnosis, and subjected the [worker] to unreasonable work restrictions, including testing”.
Concurrent to these events, the worker finally found a family doctor, who referred him to a therapist, who said he might have ADHD. The doctor prescribed him Adderall, and his focus and fatigue symptoms seemed to improve.
In May 2021, the worker’s family doctor filled out a questionnaire from ATCO Electric on his fitness to work, which she did. She indicated on the questionnaire that she did not believe he had any substance issues and that the heath concerns he did have were being controlled with medication. As a result, she said in the questionnaire that he was fit to return to regular duties.
The worker resumed his regular duties the following month, and the random drug and alcohol testing programmed from the return-to-work agreement began, which he ended up doing 20 times over a 2-year period. He also completed the required counselling sessions.
Every time he took one of the random tests, ATCO Electric took him off his regular duties and placed him on administrative duties until the test results came back, which was usually a week, but occasionally lasted multiple weeks. While on administrative leave, he could not earn overtime or on-call payments.
The arbitrator who heard the initial grievance, which took 7 days, found that both substance use disorder diagnoses from Homewood Health and the substance abuse expert were invalid because the report from the substance use expert did not specify which 12-month period she used to determine her diagnoses and “she had inferred certain criterion having been met”.
As result, the arbitrator also found that the 2 years of drug testing forced on the worker was invalid and constituted privacy breaches.
This led the arbitrator to order that ATCO Electric pay this worker $12,500 in general damages for the privacy breached.
So, that covers the original decision, which was issued on 16 December 2024.
As part of their appeal this time around, ATCO Electric challenged the arbitrator’s finding that they were liable and that they had to pay damages. They wanted the ALRB to quash the original award and send the case to a new arbitration board.
The ARLB found that the original arbitrator “considered and addressed” their concerns in their decision. ALRB also indicated that the arbitrator had “reasonably assessed the remedy based on the arguments and case law presented” and had “wrestled with the issues presented and provided reasoning” to reach their conclusion, which the ALRB framed as reasonable, “internally coherent and with arational chain of analysis”.
CEWA also filed an application to also quash the original decision, but for different reasons. They felt that the arbitrator should have found privacy breaches related to the 3 assessment referrals (which they had rejected), which would have results in further damages. They were fine with the same panel reviewing the case.
Like with their ruling on ATCO Electric’s application, the ALRB found that the arbitrator was justified in their conclusion that the 3 assessment referrals were not privacy breaches. The reasons the arbitrator used to reach that conclusion were “transparent and intelligible”.
The ARLB dismissed both applications and let the original decision and award stand.
