HR | Atlantic - Positive Change at Work

Safety Trumps Employee Privacy: Part I Cell Phone Records

Feb 08, 2012

by Linda Gaudet, HRA

Teamsters Canada Rail Conference v. Canadian Pacific Railway Company (Canadian Railway Office of Arbitration & Dispute Resolution)

In a June 2010 decision (Case 3900), Arbitrator Picher upheld CP Rail’s policy of asking employees to provide records of their personal cell phone use following a serious workplace accident. Picher reasoned that this policy did not violate the employees’ privacy rights and was “ . . . a reasonable and necessary exercise of the [ the employer’s ] management prerogatives, in the pursuit of safe operations.”

Following this decision, CP Rail expanded the situations in which it demanded employee cell phone records:

  • for the entire period of the shift on which a serious accident occurred
  • for concerns over employee productivity
  • for unredacted information in an employee’s personal phone records where an engineer was terminated for alleged unsafe operation of a train

and disciplining employees who refuse to provide their personal cell phone records where no significant accident or incident has occurred.

Not surprisingly, the Union grieved.  The dispute came back before arbitrator Picher (Case 4038) for resolution. This time he found in favour of the union on three of these issues, but confirmed that it was reasonable for CP Rail to demand an employee’s cell phone records for the entire shift on which an accident occurred.

While Picher’s second decision put a stop to CP Rail’s attempts to stretch the bounds of his original decision beyond safety-related concerns,  this second decision recognizes and confirms the employer’s legitimate interest in perusing such records for a reasonable period before and after an accident, ie., the entire shift on which the accident occurred.

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