Arbitrator Michel Picher issued a notable decision last June that recently came to my attention. He held that Canadian Pacific Railway could establish a policy of investigating serious accidents or incidents by asking employees to produce personal communication device records (with the content of messages and information about the identity of parties to communications redacted).
The company did a good job of establishing the serious risk of distraction posed by the use of personal communication devices and the need for the policy, which Mr. Picher upheld on an application of the Office of the Privacy Commissioner of Canada’s four-part reasonableness test. He summarized his views as follows:
As the cases cited above amply reflect, arbitrators are properly sensitive to the encroachment of employers into the personal and private lives of employees, particularly as relates to non-work related activity. The reasoning in those cases, however, has little or no bearing on the instant dispute. This grievance is about whether the employer can make reasonable inquiries to establish or rule out the use of a personal cell phone or other electronic communication device by an employee while he or she is on duty. To the extent that that inquiry relates only to a serious accident or incident and does not touch on the content of personal communications, it is difficult to see on what responsible basis it could be concluded that there can be no legitimate employer interest to justify the inquiry.
Mr. Picher did stipulate that the company limit its request to the period of time pertinent to its examination.
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