British Columbia arbitrator James Dorsey recently considered what personal information needs to be disclosed to fulfil the purpose of a collective agreement clause that gives a union access to information to assess the propriety of a job competition.
This award follows a 2005 judgement by the British Columbia Court of Appeal in which it held that the purpose for disclosing bargaining unit members’ personal information to the union as contemplated by the clause was consistent with the purpose for which it was collected and therefore permitted under the British Columbia Freedom of Information and Protection of Privacy Act. The Court of Appeal also held that only what is necessary to the purpose should be disclosed to the union, and perhaps unfortunately, said that “personal identifiers” should be redacted from the disclosure.
Following the Court of Appeal’s judgement, the employer applied a very literal and narrow view of the union’s right to “applications” and a very literal and broad view of the Court’s comment on redacting personal identifiers. Arbitrator Dorsey held the employer’s position was improper given the purpose of the access to information clause.
He held that the union’s right to “applications” gave it an entitlement to resumes, interview questions and responses, score sheets, and essentially all other records collected and used in the application process except reference information. He also held that the Court of Appeal’s suggestion to redact personal identifiers did not allow the employer to redact all information that would tend to identify individuals. Instead, he said:
When using the term “personal identifiers” in this context, the Court of Appeal meant information that is specific to a unique individual. This includes names and contact information, such as postal, email and other addresses and telephone numbers; passwords, social insurance, drivers licence, care card and financial numbers; and, in the current world, biometrics. This is information that is often guarded by individuals to avoid identify theft.
Ontario employers have generally been unsuccessful in resisting disclosures required by labour law on the basis of employee privacy rights.
[I picked this case up from a Lancaster House bulletin. Lancaster House is a publishing and conference company that heavily focuses on labour law. Thanks!]