Those interested in privacy damages decisions should note this March 21, 2014 arbitration decision that just came to my attention. In it, an arbitrator awarded $1,750 to each employee affected by an employer’s admittedly wrongful sniffer search of a remote work camp. He also awarded $2,250 to an employee affected by a false positive and who testified to the strain that the event cause him. Here is the core of the reasoning:
The effect of the Employer’s violation of privacy rights on employee health, welfare, social, business or financial positions in the present case may be viewed as negligible, particularly given that, by the end of the day in question, every employee knew they were not in any trouble as a result of the search. There were, however, no doubt some lasting effects given that the trust relationship between the Employer and employees was violated, and the Employer did not make acknowledgment of any wrongdoing for a period of over two years subsequent to the violation. Unlike the situation considered by Arbitrator Sims, there was no timely admission of error or apology aimed at rectifying the mistrustful environment caused by the Employer’s improper search.
In the present case the Employer did nothing up until Counsel’s opening statement at these arbitration proceedings that would have served to calm “the employees’ anxieties over the Employer’s attitude towards their right to privacy”, and employees were for a very lengthy period of time left with the impression that Manager Billingsley conveyed at the demonstration to the effect that the Employer was not only unapologetic, but that it had every right to enter and search residences without notification or the presence of its occupants. Further Manager Annibal’s evidence at these proceedings did not include an unequivocal admission that employee privacy was violated, and he left it open as to whether such was the case when he stated he was “sorry if he violated anyone’s privacy.” Despite the opening statement made at these proceedings by Counsel for the Employer over two years after the unlawful incident occurred, little of sincere substance was conveyed to quell the distress and annoyance suffered by the employees as a result of the improper search.
Another factor in the present case that bears on the matter of appropriate remedy is the previous settlement in 2005 between parties on the precise topic of Employer searches without reasonable cause. As a result of this settlement it would be reasonable to conclude the Employer was attuned to the matter of employee privacy rights and unreasonable searches. The Union and its members had a right to rely on the substance of this settlement agreement as protection against further searches without reasonable cause.
I accept the circumstances of the present case warrant an award of damages in the amount of $1,750 to each employee covered by the grievance except Mr. Moretti, who is entitled to $2,250. For clarity, employees are entitled to the damages whether or not they were scheduled to be at Kemano during the week the search occurred. The circumstances do not warrant the cease and desist order sought by the Union.
Note the emphasis on the lack of an early, genuine apology.
Rio Tinto Alcan and Unifor, Local 2301 (Kemano), Re, 2014 CarswellBC 4251.