Arbitrator upholds sniffer dog search grievance

On January 5th, Arbitrator Norman of Saskatchewan held that an employer breached its collective agreement by periodically deploying drug detection dogs to screen people entering its mine.

Arbitrator Norman held that the process intruded on a reasonable expectation of privacy based on evidence that the dogs would likely identify off-duty drug use. Though Arbitrator Norman characterized the search invited by a dog sniff as minimally intrusive (and less intrusive than the sampling of bodily substances), he nonetheless held that the employer’s safety-related process was unreasonable. He drew heavily from the Supreme Court of Canada’s Irving Pulp and Paper decision, stating:

The prior threshold stage in the justificatory argument limiting rights under the Charter sets the bar very high; calling for proof of a pressing and substantial objective demonstrably justifiable in a free and democratic society, for the challenged measure. Under ‘Charter values’ analysis, I take the threshold bar to have been set by Irving as “… evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”

While many might agree with the outcome, this reasoning is questionable. The resolution of privacy issues call for a highly contextual balancing of interests. Irving speaks to a particular balance that relates to universal random drug and alcohol testing, a process Arbitrator Norman reasons is relatively intrusive; Irving establishes no “bar” to meet in implementing other safety measures in the workplace whether or not they are related to drug and alcohol use. Moreover, the reference above to the Oakes test is flawed; under a Charter analysis (if such analysis is necessary), the question of whether a search is an “unreasonable search” is distinct from the question of justification under section 1 and Oakes.

USW, Local 7552 and Agrium Vanscoy Potash Operations (5 January 2015, Norman).

Arbitrator awards privacy damages for implying an employee suffered from mental distress

On December 4th, Arbitrator Andrew Sims ordered the Edmonton Police Service to pay a grievor $5,000 in damages for breach of privacy.

The case arises out of the Service’s handling of an intense interpersonal conflict between the grievor, a police detective, and his staff sergeant. The conflict led to a formal review in which the reviewing investigator recommended the grievor’s transfer to a new unit due to interpersonal problems, the responsibility for which was borne by the grievor and others. Before the Service addressed the recommendation, however, the grievor and his staff sergeant had an altercation.

The altercation invited an immediate decision to pursue the recommended transfer. Although the formal review had raised no concerns about the grievor’s mental health, when superintendent met with the grievor to advise him of the transfer she became concerned about his mental health on account of his reaction.

The superintendent raised the need for a psychological assessment, which the grievor undertook grudgingly but voluntarily. While this assessment was pending the superintendent met with the department and implied that the grievor was mentally unwell, in essence conveying the same opinion that was the basis for the pending assessment. In the end, a psychologist determined the grievor was “psychologically intact and functional.”

Based on the following analysis, Arbitrator Sims ordered the Service to pay $5,000 in damages:

Had the Employer described to a work group a physician’s diagnosis of a co-worker, that it had obtained in its role as employer, disclosure would clearly be a breach of the employee’s right to privacy of their personal medical information.  To anticipate a diagnosis, based only on personal observations, however genuine the concerns,and to discuss that in public, is just as serious a breach of privacy.  Arrangements were underway to get the grievor assessed.  Implying anything as to his state of health pending that assessment was inappropriate and unnecessary. The decision was made to transfer the grievor based on the problems he was having with his Staff Sergeant and the Unit Review.  This was decided before the health concerns arose from the interview.  Given that, there was really no need to go into whether the grievor had health issues at all. The emphasis on the grievors “H.R. issues” had the effect of adding undue emphasis to the suggestion that the broader issues in the unit, which were serious in themselves, were due to the grievor’s health issues.  That too was unjustified given the more balanced assessment in the unit review itself.  The grievor’s reputation amongst his peers, his need and ability to interact with them in future, and his sense of employment security were all impacted by the excessive commentary during this meeting.  While I accept that the comments were made out of genuine (although to a significant degree unfounded) concern, they amounted to a breach of privacy and caused harm to the grievor’s privacy interests. Police officers are particularly dependent upon their reputation amongst their peers.  Any suggestion of mental problems or unreliability can seriously hurt their working relationships and their careers.  I find these breaches of privacy sufficiently serious to justify financial compensation which, based on a review of the authorities discussed above, I award at $5,000.

Edmonton Police Service v Edmonton Police Association, 2014 CanLII 73072 (AB GAA).

Arbitrator dismisses complaint that union misused employer’s confidential information

On June 9, Arbitrator Marcotte dismissed an employer grievance that alleged a breach of confidence by its union.

In preparing for a discipline grievance that related to service provided to a client of the employer, a union business agent contacted the client for information. The employer grieved, claiming both a violation of the collective agreement and PIPEDA. The collective agreement did not contain an express confidentiality clause. The employer relied on a number of other collective agreement provisions to support an “implied right” and ground arbitral jurisdiction, including a purpose clause that called for “orderly and harmonious relations.”

Arbitrator Marcotte held that the employer was not alleging the breach of a right granted by the collective agreement. He also held that PIPEDA does not apply.

Recall Canada and Teamsters, Local 938 (9 June 2014, Marcotte).

BCLRB affirms decision denying grievor anonymity

There has been some significant British Columbia litigation about whether the British Columbia Personal Information Protection Act gives a grievor a right to have his identity obscured in an arbitration award.

On May 29th the British Columbia Labour Relations Board affirmed a decision by arbitrator Stan Lanyon on the issue.

Thr Board held that PIPA does bind a labor arbitrator, but that labor arbitrators nonetheless retain a discretion in deciding whether to grant a right of anonymity based on the “authorized by law” exception to the consent rule.

The Board also affirmed Arbitrator Lanyon’s finding that the arbitration process is “not a purely private dispute resolution mechanism,” that there is therefore a public interest in open proceedings and that there is a particular public interest in publishing the names of individuals who commit employment offences.

Look for an appeal on this very principled and important issue.

Sunrise Poultry Processors Ltd v United Food and Commercial Workers International Union, Local 1518, 2014 CanLII 27506 (BC LRB).

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).

Case Report – Publication of teaching evaluation data lawful

Arbitrator Brent held that the University of Windsor did not violate its faculty collective agreement or the Ontario Freedom of Information and Protection of Privacy Act by publishing teaching evaluation scores on a secure network for access by students and other members of the university community.

She made three findings. First, she held that the change in practice did not breach a frozen practices provision in the collective agreement because the publication condition (freedom from publication, as was argued) was not fundamental to the employment relationship. Second, she held that the express collective agreement restriction on disclosure of faculty personal information did not apply because the information disclosed was not “personal information” under the collective agreement. In reaching this finding, she relied on permissive collective agreement language that referred to the use of teacher evaluation data to construe the term “personal information.” Finally, she held that FIPPA did not apply based on its employment-related records exclusion and the fact that the data was used in the University’s promotion, tenure and renewal process. In rejecting the Association’s argument that student use of the data brought the records under the auspices of the Act, she said:

To argue that it ceases to become a “labour relations” or “employment-related” matter once it is made available to the students would in my view have the effect of excluding SET from FIPPA when it is used for employment related purposes but then including it when it is used to provide information to students. Such a result would be contrary to the Court of Appeal’s decision that once it is determined that FIPPA does not apply to certain material, then that material is exempt from FIPPA for ever.

University of Windsor and University of Windsor Faculty Association (Re) (19 February 2007, Brent).