Case Report – Arbitrator upholds police record check grievance

On May 14th, Arbitrator Wayne Moore endorsed the general reasonableness of a City of Vancouver policy that requires current employees in designated positions to submit police record checks every five years but also held that it ought not apply based on fire suppression duties.

Arbitrator Moore assessed whether the policy was reasonable light of the necessity standard in section 26(c) of the British Columbia FIPPA. He started by rejecting the Union’s argument that the City needed to demonstrate an “existing problem” to justify checks on current employees:

The Union argues that in order to implement the Policy, the Employer must show evidence of an existing problem in the workplace. I find that it is not inherently unreasonable to enact a policy in anticipation of a problem so that the organization can be in a position to identify the problem and to address it. To the extent that the Union argues that actual evidence of a problem in the workplace is a pre-requsite for the establishment of a reasonable policy, I disagree. In my view, the Employer is entitled to act proactively, so long as it does so reasonably. That said, the absence of evidence of a problem can impact on both the reasonableness of a policy and the reasonableness of its application.

Then, Arbitrator Moore held that the City ought to narrow its criteria for designation to conform with the reasonableness requirement, in essence requiring a relatively strong correspondence between position duties and risk. In the result, he held that it was reasonable to designate members of the City’s fire unit as subject to the police check requirement based one or more of the following criteria:

  • they have ongoing or significant unsupervised access to vulnerable people in the ordinary course of employment (where “unsupervised” means unsupervised by management or other employees)
  • they are responsible for the security of people and/or material assets in “some significant way”
  • they exercise significant discretion and have independent power to make decisions, such that they may be susceptible to corruption

Based on these narrowed criteria, Arbitrator Moore held that the City had improperly designated a number of positions. He held that fire suppression and the provision of emergency medical services involves insignificant contact with vulnerable persons (as distinct from the role of a paramedic who responds to a fire call) and involves an insignificant responsibility for the security of people and material assets (as distinct from the role of a site security guard). By this finding, he held that the policy ought not apply to firefighters and other positions that the City designated on the basis of fire suppression duties. Conversely, he held that the City properly designated a number of positions based on an assigned responsibility for fire safety enforcement.

Arbitrator Moore also held that they City must compensate employees for time spent, including travel time, at overtime rates and must reimburse employees for the expenses incurred in obtaining their records.

Vancouver (City) v. Vancouver Firefighters’ Union, Local 18 (Police Records Checks Grievance), [2010] B.C.C.A.A.A. No. 81 (Moore).

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