Case Report – Arbitrator orders call centre to stop recording calls

Earlier this year, on April 17th, Arbitrator Veniot ordered the Halifax Regional Municipality to cease and desist from recording calls to its municipal call centre for quality monitoring, coaching and dispute resolution purposes.

The union grieved the implementation of a system whereby the Municipality recorded all calls to its call centre. It claimed a breach of the privacy protection provisions of the Nova Scotia Municipal Government Act and the collective agreement. The system was implemented after the Municipality had engaged in a successful program of customer service improvement. The evidence showed its call centre was “functioning well” at the time of the implementation, so the Municipality argued that the call centre attendants had little expectation of privacy, that it was simply supervising work product and that it was being diligent in its attempt to improve service.

Mr. Veniot rejected this argument and ordered the Municipality to cease and desist. It’s a lengthy decision with lots more in it than I will cover here. In my view these are the most significant features and findings:

  • Mr. Veniot finds the characteristics of a person’s voice is personal information, but does not consider the sensitivity of this information in the balance. He does not engage in an explicit analysis of whether the content of call centre employees’ communications are their “work product” or their personal information, though he appears to view it at personal information given his comments about the intrusiveness of monitoring “every single word” uttered on calls.
  • Mr. Veniot interprets the “necessity” standard for collection in the legislation strictly, distinguishing the text of the Nova Scotia statute from text of PIPEDA (which speaks of “reasonableness”) and implying that a necessity standard does not entail a balancing of legitimate interests. His approach is technical and focussed on language, and very different from the purposive and contextual approach taken by the British Columbia based on identical statutory language in the British Columbia Freedom of Information and Protection of Privacy Act.
  • Although finding there is no “free-standing” right of privacy, Mr. Veniot states that employees come into the collective bargaining relationship with a right to “some” privacy, and therefore, “the question is never whether that right is in the agreement – something [he has] never seen – but how and on what basis the employer can argue that employee [sic] have surrendered any portion of that right.”

This is the first case I’m aware of on the issue of recording call centre communications.

Halifax (Regional Municipality) and Nova Scotia Union of Public and Private Employees, Local 2 (Policy Grievance) (Re), [2008] N.S.L.A.A. No. 13 (Veniot).