On August 29th, another Ontario labour arbitrator dismissed a biometric timekeeping system grievance. Arbitrator Susan Tacon dismissed the grievance on some rather strong evidence adduced by the employer, but did make the following general comment about the very conservative IKO Industries case (which the Ontario Superior Court of Justice – Divisional Court upheld as reasonable):
With respect, I also do not find the reasoning in IKO Industries, supra, compelling. The standard for establishing an “invasion” of privacy is set so low and the business rationale must be so critical to the company that no other system is possible. The test really espoused in IKO Industries, supra, is that any infringement of privacy, however minor, will outweigh a legitimate business rationale which is not essential to the continued operation of the company. In my view, that approach undermines the concept of proportionality, unduly weakens the management rights clause in practical terms and is not consistent with the weight of the arbitral jurisprudence. In any event, for reasons which will be given infra, the decision is distinguishable on the facts.
The weight of arbitral authority in Ontario now strongly favours the adoption of biometric timekeeping systems provided the chosen system has a number relatively common security features to protect against misuse and secondary use of biometric data and provided the chosen system does not invite a violation of any uniquely restrictive collective agreement terms. Employers who run through the security-related considerations with a checklist-like tool and seek input from counsel on the effect of their collective agreements will gain a very strong appreciation of the risks associated with adoption. In many cases, employers will be safe to proceed.
Gerdau Ameristeel v. United Steelworkers, Local 8918 (Biometric Scan Grievance), [2011] O.L.A.A. No. 405 (Tacon) (QL).
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