Arbitrator says demand for personal cell phone records not justified

In a recently published award, arbitrator Michel Picher held that an employer was not justified in demanding production of an employee’s personal cell phone records.

The employee – an apprentice diesel mechanic who worked in a safety sensitive environment – was observed holding his Blackberry device contrary to company policy. He said his shift was almost over and he was just checking the time. In its investigation, the employer asked for copies of his cell phone records.

Arbitrator Picher inferred that the request was made for the purpose of checking whether the employee had used his phone earlier in the shift, an improper purpose (not supported by reasonable grounds, I note) and a significantly different purpose than following up on a significant accident or near miss. Arbitrator Picher has previously endorsed limited requests for personal cell phone records for the latter purpose.

The Canadian Pacific Railway and CAW-Canada, Local 101 (M. Picher, 22 November 2011).

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