Canadian Employment Law Today

CELT August 21 2013:celt 467.qxd 13-09-16 9:50 AM Page 6 August 21, 2013 Information was collected for legitimate purposes ...continued from page 1 of "time theft" by validating the hours a vehicle is in operation. The privacy commissioner agreed with the union that the information collected was personal. According to the commissioner, the information did not need to be "about an identifiable individual in some 'personal' or 'private' way" so long as it could be used to identify the driver of a specific vehicle. The privacy commissioner then considered whether the information was "employee personal information," in which case different rules would apply to its collection, use and disclosure. This involved consideration of whether the information was collected, used or disclosed "solely for the purposes reasonably required to establish, manage or terminate an employment relationship." The privacy commissioner answered in the affirmative, noting the GPS system and policy were for "legitimate, reasonable, business purposes." In light of her finding the information was "employee personal information," the privacy commissioner then had to determine whether PIPA had been complied with. This involved a consideration of the following questions: •Is the information collected and used of a sensitive nature? Is more information collected than is reasonably required for the employer's purposes? The privacy commissioner concluded the information was not especially sensitive since the information arose, overwhelmingly, in the context of work-day activities. •Is the collection, use or disclosure of the information likely to be effective in fulfilling the company's objectives? The privacy commissioner noted the employer had reported a 30 per cent drop in accident costs since it implemented the GPS system. This was a good indication it was effective, at least insofar as it related to promoting safe driving habits. •Are there reasonable alternatives that ought to have been considered? The privacy commissioner found self-reporting by drivers appeared to be the only alternative and this was not as effective. •Has the information been collected covertly? The privacy commissioner noted the employees were well aware of the GPS system and policy. On this basis, the privacy commissioner concluded there had been no breach of the employees' privacy rights under PIPA. the risk of having workplace surveillance policies successfully challenged. When contemplating the implementation of a surveillance policy, employers should consider the following factors: •Is the information collected and used of a sensitive nature or within the normal context of work-day activities? •Is more information collected than is reasonably required for the employer's purposes? •Is the collection, use or disclosure of the information likely to be effective in fulfilling the company's objectives? •Are there reasonable alternatives that ought to be considered? •Is the employer's policy and practice clear and understandable to employees? •Have employees been made aware of the policy and practice? See Schindler Elevator Corp., Re, 2012 CarswellBC 4283 (B.C. Information & Privacy Commr.). CELT ABOUT THE AUTHOR What the decision means for employers The decision in Schindler was made under the B.C. privacy regime, one of four jurisdictions in Canada to specifically legislate protections for employee personal information (other than health information) in the private sector — the others being Alberta, Quebec and the Federal level. Nevertheless, it provides invaluable insight as to the best practices available to employers to reduce Adrian Jakibchuk Adrian Jakibchuk is a lawyer with Sherrard Kuzz LLP, a managementside labour and employment law firm in Toronto. Adrian can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting www.sherrardkuzz.com. Worker said there was extra product for the taking ...continued from page 3 find this was likely because other evidence showed Lazarro was on a tight budget and carefully checked her prices, including the turkey slices incident. The arbitrator found Lazarro's explanations lacked credibility and the videotape footage showed she clearly violated Metro's anti-theft policy on multiple occasions. Though Lazarro was a longterm employee with no previous disci- 6 pline who was hit hard by her termination, the arbitrator found the instances of misconduct were serious enough to warrant dismissal, particularly since Lazarro didn't really show much contrition. In addition, her explanations for her misconduct lacked complete honesty and seemed to be an attempt to gloss over her misconduct, said the arbitrator. Lazarro's termination was upheld and her grievance dismissed. "(Lazarro)" knew the company poli- cies and knowingly violated them," said the arbitrator. "There has been no frank acknowledgement of wrongdoing either at the investigation stage or at arbitration; instead there has been a variety of excuses (eg. condonation), none of which stood up to scrutiny." CELT For more information see: ■ Metro Ontario Inc. and UFCW-Can, Local 175 (Lazarro), Re, 2013 CarswellOnt 8422 (Ont. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013

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