Monday, November 14, 2011

Arbitration award balances employees' privacy interests and employer's legitimate business objective

Below is a summary of the arbitration award issued by arbitrator Heather Laing on August 12, 2011 in the case of Spectra Energy v. Canadian Pipeline Employees' Association prepared by Diane MacLean.


The employer introduced a policy which required employees who drive company owned, leased, or rented vehicles an average of one or more times per week, to give consent to the employer to access their B.C. Motor Vehicle Records.

The union argued that the policy was not reasonable and violates the employees’ privacy rights. The union said the appropriate analysis is twofold: Is the policy reasonable and what is the balance between the employer’s need for information and the employees’ right to privacy? If the balance favours privacy, then the policy is not reasonable and cannot be implemented. The union argued that the policy was not reasonable for the following reasons: no evidence of any increase in safety incidents or that the application of the policy would result in a safer workplace; no evidence that the company’s existing safety programs, combined with programs of third parties, are insufficient or inadequate to address the employer’s safety concerns. As well, the union argued that there was no evidence that off duty driving conduct is a good predictor of behaviour at work and that there are less intrusive ways to accomplish the employer’s goals.

The employer argued that the policy was issued in aid of a company core goal of safety. The policy is justified because it is a reasonable safety initiative and improving performance is a reasonable way to minimize risk (high risk drivers would be required to take further training).

The arbitrator identified the issue as “how to properly balance the privacy rights of employees in relation to the legitimate business interests of the employer.” A review of the arbitral jurisprudence reveals some basic principles had been developed:

• Each case is dependent on its own facts and is to be decided on the basis of the particular circumstances involved;

• The nature and significance of the particular privacy rights and the employer’s business interests in issue must be clearly identified and carefully weighed;

• Privacy rights arising from the application of statute and regulation are given greater weight than rights created in a particular workplace under the terms of a given collective agreement; and

• An arbitrator’s inquiry into the merits of an alleged intrusion into a privacy right established by statute or regulation should take into account the public interest that may be involved.

Both parties referred to Arbitrator Smith’s findings in Re Finning International Inc. and International Association of Machinists and Aerospace Workers, Local 99 (2004), 135 L.A.C. (4th) 335. The arbitrator noted that it provided “a carefully reasoned analysis and approach based on a thorough review of the arbitral principles to be applied” and was directly applicable to the facts and circumstances of this case. In regard to who bears the burden to prove the rule was reasonable, the arbitrator in Finning stated:

… if the Union establishes that the rule infringes a legitimate right of privacy, the Employer must demonstrate that it is reasonable in the sense of being rationally connected to and advancing a legitimate business purpose which outweigh the employee’s right to privacy.

The arbitrator in this case noted that the employer:

… produced insufficient evidence and no demonstrable reasons that provide a factual basis for the intrusion into the privacy rights of the employees. The employer has the burden of establishing the reasonableness of the rule “… having regard to the availability of less intrusive alternatives.””

In particular, the arbitrator found there was no evidence that safety was a growing or newly urgent problem for the employer. As well, in British Columbia, the requested records are personal and are protected by statutory privacy rights. Finally, although the employer was to be commended for being safety conscious, there were alternative ways of achieving this goal without intruding on the privacy rights of employees. The arbitrator concluded:

I find the policy is over reaching and goes over broad; it requires employees to produce information that as a matter of law is personal to them. No reasonable basis for such interference with the employees’ rights has been established. The net effect is that the policy, which requires an employee to sign a consent form, is at variance with the public policy in this province designed to protect such personal information. Arbitrators should not interfere with such important rights, absent compelling circumstances. No such situation exists here.

(Note: some of the union’s privacy concerns are interesting. The policy was going to be assigned to another company which was a subsidiary of an American company. This company would receive the records, assess who was a high-risk driver and then contact the employer to provide a Driver Improvement Plan. The union’s witnesses where concerned about where the information was being sent, who would have access to it and for what reason would the information be used. In particular, they expressed concern about:

• The number of the employer’s employees who would have access to the information;

• The contracting company’s computerized system and if it could result in identity theft;

• Since the contracting company was a subsidiary of an American company, would it be required to provide employee’s personal information to Homeland Security?

• Once they signed the consent form, it appeared that it would not be sought again annually, and that the original consent could be used to access records at any time thereafter;

• Why was the employer asking for information about off-duty driving when it already had information about on-the-job driving?

• Why were other safety initiatives, that did not involve a violation of privacy rights ,not being implemented?

• That information provided by the employer said that a Driver Improvement Plan could include revoking or limiting driving privileges which could affect an employee’s job.)

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