Canadian Employment Law Today

May 20, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2020 BY PIERRE-ALEXANDRE BOUCHER AND FRÉDÉRIC POIRIER HOW FAR can an employer's policy prohibit- ing cellphone usage as well as cellphone pos- session go? That is the question a Quebec ar- bitrator had to answer in Ville de Victoriaville c. Syndicat des fonctionnaires municipaux de la Ville de Victoriaville (CSD). This case should provide guidelines for employers who seek to limit cellphone usage in the workplace through a policy. The employer, the City of Victoriaville, Que., already had a policy that prohibited the use of personal cellphones during working hours. However, this policy was not widely respected, to the extent that some employees received per- sonal calls during meetings with their superiors. Evidence indicated that the supervisors did not intervene in order to preserve the positive work environment. Prohibiting possession of a cellphone for certain employees The city decided that, instead of using indi- vidual discipline to solve the problem, it would establish a new policy that would not only prohibit usage of a personal cellphone during working hours but also prohibit the use of a per- sonal cellphone while driving and completely ban possession of a personal cellphone for a list of blue-collar workers — essentially those whose work involved driving heavy vehicles. To the union, such a policy was unreasonable and abusive and thus warranted the interven- tion of an arbitrator. The abuse stemmed from prohibiting the employees to use the most ef- fective means of communication to call, for ex- ample, their immediate family or health profes- sionals. The arbitrator noted that, while the collective agreement contained no provisions regarding cellphone usage, the employer had, through its management rights, the power to manage its business in the way it saw fit, as long as the ex- ercise of such power was not abusive, unreason- able or discriminatory. The arbitrator then noted that one of the ob- jectives of the policy was to improve security in the workplace and for the public in general. The employer's expert, Pierre-Majorique Léger, ex- plained that the policy aimed to eradicate the problem at its source by decreasing the risks of collisions for the workers who drive cars and heavy vehicles at work. The other objective was efficiency, by decreasing distractions at work. The arbitrator explained that it is legitimate for an employer to adopt a policy with security and efficiency objectives. Security and efficiency concerns For white-collar employees, for whom the use — but not possession — of a personal cellphone was prohibited, the arbitrator noted that, in ex- change for a salary, employees undertook to do some work and must, therefore, concentrate on their task. An employee cannot, aside from dur- ing pauses, be distracted by hobbies or other per- sonal matters. Some employees testified that they some- times used their cellphone, for example, to reach their family or their physician. The arbitrator ex- plained that, while such communications can be legitimate, a personal cellphone is not required since the city demonstrated that every employ- ee can be reached within 15 minutes (through workplace phones and radio). The arbitrator also emphasized the difficulty for the employer to apply the previous policy due to the fact that the blue-collar workers were dispersed in the city's territory, but also because there is a feeling of permanent temptation for people to always keep their cellphone next to them. According to the arbitrator, the new policy fixed that problem by simply prohibiting pos- session of the phone at work for heavy-vehicle drivers. The arbitrator concluded that the policy ad- opted by the employer was most reasonable for security and operations efficiency. On the one hand, the employer has a legal obligation for security at work following the Civil Code of Que- bec, the Act respecting occupational health and safety, and the Quebec Highway safety code. The employer was simply assuming the obligations incumbent upon him by the law. Concerning the security questions, the employer made the right choice of prohibiting possession and use of the personal phone while driving a car that belonged to the city, due to the dangers that this behaviour could engender. An expert witness On the question of security, this danger was prov- en by an expert report and several studies. First, the arbitrator quoted an extract from the expert report about general effects of smartphone use on attention. Essentially, the report referred to the cognitive cost of taking one's mind from one task to another one because the human brain needs to reconfigure between each task. Accord- ing to the report's author, a person is less efficient when multi-tasking in comparison to doing a single task. Multi-tasking increases errors and de- creases work quality. Because of this and the fact that cellphones are a multi-tasking tool, their use could be harmful when doing a task. Moreover, the presence of a cellphone itself could be harm- ful to the focus and performance of workers. According to the expert report, all studies show that using a cellphone while driving has a nega- tive impact, whether with phone in hand or with a hands-free device. The arbitrator quoted those studies to con- clude that using a phone while driving can be dangerous. Drivers using their phone while driv- ing multiply collision risks by approximately four times and those who text while driving multiply the risks by 20. Moreover, the danger doesn't stem from having the cellphone in hand but of the cognitive distraction cellphones cause to the brain. Causality exists between using a cellphone while driving and the risk of accident. Cellphones are a dangerous distraction and dis- traction in all its forms is the most common rea- son police officers cite to explain car accidents. The arbitrator rejected the grievance by invok- ing the expert report and all scientific studies used by the employer, concluding that the new policy tackled an important security issue with wisdom and discernment and that it could not be qualified as unreasonable or abusive. This decision indicates employers can exercise closer control of personal cellphone use at work and provides employers with an interesting tool in trying to tackle major workplace problems re- lated to them. For more information, see: • Victoriaville (Ville) c. Syndicat des fonctionnaires municipaux de la Ville de Victoriaville, 2020 CanLII 14459 (QC SAT). ABOUT THE AUTHORS Pierre-Alexandre Boucher Pierre-Alexandre Boucher is a lawyer with Belanger Sauvé in Montreal, practising in labour relations, constitutional law, human rights and administrative law. He can be reached at (514) 876-6244 or Frédéric Poirier is also a lawyer with Belanger Sauvé in Montreal, practising in labour relations. He can be reached at (514) 876-6253 or Making a cellphone ban stick Quebec arbitration decision indicates employers can fully ban cellphones from the workplace where there are security and safety concerns

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