Privacy, Law and the Contemporary Workplace – November 2013 Conference

The Queen’s University Faculty of Law – Centre for Law in the Workplace is hosting a conference in Toronto this November 22nd. I’m on the steering committee, and we’ve put together a great lineup of speakers that features British Columbia Commissioner Elizabeth Denham and top academic and expert practitioners. I’m excited about it and hope you can make it. Details below!

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Twin BC commissioner reports okay use of telematic data

On August 28th, the British Columbia OIPC affirmed two elevator companies’ (Kone’s and Thyssenkrup’s) use of telematic data for the purpose of managing their service employees.

The outcome is not surprising. The Commissioner herself affirmed another elevator company’s fleet management program in a thoroughly-reasoned decision last December. Also, all Canadian decisions (by privacy regulators and arbitrators) have recognized the legitimacy of such programs (which rest on the collection of location data and vehicle operation data). Kone’s program was unique in that it collected data from cellar telephones (rather than vehicle units). The OIPC held that Kone’s program collected more sensitive personal information but was nonetheless reasonable.

The decisions are notable for the OIPC’s conclusion that an organization in BC does not need a stand alone GPS or Telematics policy to comply with the notice and “policies and practices” requirements in BC PIPA. It held that Kone complied with its obligation by giving a detailed PowerPoint presentation that outlined the specific purposes for which it would use employee personal information in advance of implementing its program. Thyssenkrup breached its obligations; it had difficulty establishing that it had a formal communication program that addressed the purposes of its program in any detail.

Order P13-01(28 August 2013).

Order P13-02 (28 August 2013).

Employer’s Privacy and Confidentiality Policies Upheld by Court

A recent decision of the Supreme Court of British Columbia underscores that courts will view any breach of an employee’s right to privacy and confidentiality in the workplace as a serious infraction.

In Steel v. Coast Capital Savings Credit Union, the plaintiff was employed on the Helpdesk where she had access to confidential information, including personal folders of other employees. The employer had policies in place regarding access to private and confidential information, including a protocol to be followed by Helpdesk employees when they needed to access the personal folders in order to provide technical assistance. The plaintiff was aware of these policies.

When the employer learned the plaintiff, a 20 year service employee, had accessed confidential information contained in a personal folder without following the protocol in place, it terminated her employment on the basis that her actions constituted a severe breach of trust. The Court upheld that termination, finding that as a member of the Helpdesk, the plaintiff was in a position of “great trust” and she worked for an employer (a credit union) that operated in an industry where trust was of “central importance”. It stated:

[27] It was not practicable for Coast to monitor which documents Ms. Steel accessed and for what purpose. The employer had to trust Ms. Steel to obey its policies and to follow the protocols. It had to trust Ms. Steel to only access such documents as part of the performance of her duties and to follow the protocols when she did so. Such trust was fundamental to the employment relationship in relation to Ms. Steel’s position. It was, to use the language of Iacobucci J. in McKinley, “the faith inherent to the work relationship” that was essential to this employment relationship.

The willingness of the Court to uphold the cause termination of a 20 year employee for a violation of the employer’s policies sends a strong signal that courts will not hesitate to enforce and apply clearly drafted employer privacy and confidentiality policies, in order to protect confidential information.

Steel v. Coast Capital Savings Credit Union, 2013 BCSC 527 (CanLII)

SCC alcohol testing decision invites peace in the valley by giving a boost to arbitral precedent

The Supreme Court of Canada’s June 14th decision in Irving Oil represents a remarkable elevation of arbitral precedent to near binding law, contributing clarity on an issue that has been heavily litigated by employers and unions for years.

The ratio, at paragraph 31, is that an employer with a safety-sensitive workplace needs proof of “enhanced safety risks” (such as a workplace substance abuse problem) to implement universal random substance testing. Although the judgment was split, both majority and minority agree that this is the evidentiary burden endorsed in “remarkably consistent arbitral jurisprudence.”

The Supreme Court of Canada wanted to deliver “peace in the valley” without causing too much upset in its established deference-favouring principles of judicial review.

Upset is exactly what the Court of Appeal of New Brunswick had created by issuing an unprecedented standard of review decision in its handling of the case. The lower court applied the correctness standard of review because labour arbitrators had not been able to reach a consensus. Justice Robertson said:

In the present case, it is evident that the arbitral jurisprudence is not consistent when it comes to providing an answer to the central question raised on this appeal. Hence, it falls on this Court to provide a definitive answer so far as New Brunswick is concerned.

In response, the Supreme Court of Canada held that the reasonableness standard applies to the interpretation of a collective agreement based on its established jurisprudence. It did not mention Justice Robertson’s novel approach to addressing an inconsistency in arbitral jurisprudence nor did it explain how it reached the opposite conclusion about the existence of arbitral consensus. Did it find the jurisprudence to be consistent as step one in its aim to promote clarity in the law?

Step two involves the Court’s treatment of arbitral precedent in assessing the reasonableness of Arbitrator Veniot’s decision. The Court unanimously held that the reasonableness of a labour arbitrator’s decision will be judged in light of established arbitral consensus.The majority felt that Arbitrator Veniot’s decision was consistent with the consensus, which supported its reasonableness. The minority felt that Arbitrator Veniot’s decision was inconsistent with the consensus, an error given he did not provide a rationale for his departure: “In the absence of a reasonable explanation for its novel test, the board must be taken as having misapplied the existing test, which in the circumstances of this case rendered its decision unreasonable.” This treatment of arbitral precedent as so central is novel and significant, though both the majority and minority specified that precedent was particularly important “in this case,” presumably given the deemed “remarkably consistent arbitral jurisprudence.”

Arbitrators are technically free to reason their way around the ratio of Irving Oil, but why would they? For practical purposes, the Court has delivered near binding precedent.

Of course, the non-unionized employees are much more vulnerable, many protected only by anti-discrimination legislation and a theory for finding discrimination espoused in the Court of Appeal for Ontario’s Entrop decision that is becoming less and less consistent with the SCC-defined meaning of discrimination. In light of the Supreme Court of Canada’s gymnastics in Irving Oil, is there any doubt that the courts will find a path, however tortured, that leaves non-union employees with the same protection?

Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 (CanLII).

“Drug abuse” diagnoses justifies random testing requirement

Last November 29th, Arbitrator Hall held that an employer could impose random drug testing on a employee in a safety-sensitive position who admitted to regular cannabis use outside of the workplace and who had been diagnosed as a “drug abuser” but not “drug dependent.” He explained:

…a closer review of the authorities reveals that arbitrators have distinguished between “use”, “abuse”, and “dependence/addiction”. Once the distinction between use and abuse in particular is recognized, the Union’s comparison to the casual consumption of alcohol away from the workplace is no longer compelling. The distinction was made in Hamilton Street Railway in these terms: “Use does not equate to abuse and it does not follow that because the grievor may use infrequently he will one day arrive at work impaired” (para. 33; emphasis added).

Although he upheld the random testing requirement, Arbitrator Hall ordered the employer to reduce testing frequency to quarterly from monthly and to limit testing to cannabis.

Spectra Energy Transmission – West and Communications, Energy and Paperworkers Union of Canada, Local 686b (29 November 2012, Hall).

Cole and Tsige: Clarifying the implications in the workplace

This is the title of an OBA panel discussion I participated in today with Christopher Du Vernet, counsel to Sandra Jones in the 2012 case that created our intrusion upon seclusion tort. These are my speaking notes.

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OLRB dismisses vehicle telematics policy grievances

On January 21st, the Ontario Labour Relations Board dismissed three policy grievances that challenged the use of vehicle telematics and a rule against the personal use of company vehicles without permission. Vice-Chair Silverman stressed that use of company vehicles to get to and from work was optional but of benefit to employees and said the following about the union’s “less intrusive means” argument:

The union’s suggestion that the employer use another system for monitoring use such as the PDA or the vehicle’s odometer or gas consumption,either is not germane to what the employer is permitted to do. The issue is whether the employer is precluded from using the Telematics device not whether some other device, is adequate to the purpose.

In assessing the reasonableness of the personal use prohibition, Vice-Chair Silverman recognized that the employer exercised a discretion to relieve against the prohibition and it was reasonable to do so based on a disclosure of off-work plans.

International Union of Elevator Constructors, Local 50 v Otis Canada Inc, 2013 CanLII 3574 (ON LRB).

Sask CA affirms union right to observe job interviews despite privacy claim

On January 31st, the Court of Appeal for Saskatchewan affirmed a union’s right to observe job interviews with external candidates notwithstanding the employer’s claim that the observation right should be “read down” to protect individual privacy.

The case involves a collective agreement provision that gives a union a right to observe job interviews “for which any [bargaining unit member] has applied.” At arbitration, the employer argued that the union’s observation right extinguishes after all bargaining unit members have been eliminated from a competition. It raised the privacy rights of external applicants in making this argument.

The arbitration was a disaster for the employer. The arbitrator held that the union’s right to observe was unlimited. The arbitrator also suggested that the Saskatchewan Local Authority Freedom of Information and Protection of Privacy Act required the employer to notify external candidates of the union’s observation rights and obtain their consent. The employer managed to have the latter finding overturned on judicial review by successfully arguing that the disclosure to the union was for a “consistent purpose.” It did not upset the arbitrator’s interpretation of the collective agreement provision, however, so appealed.

The Court of Appeal affirmed the arbitrator’s interpretation of the collective agreement based on the reasonableness standard of review. It also suggested that the employer’s privacy argument was disingenuous, questioning how the employer could argue that observation by the union was okay so long as bargaining unit members were in the competition but offensive to external candidate privacy interests if they were not.

Saskatchewan Institute of Applied Science and Technology v Saskatchewan Government, 2013 SKCA 8 (CanLII).