Canadian Employment Law Today

6 | february 18, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends/ask an Expert Worker didn't co-operate with investigation tions advisor to whom the worker had spo- ken made a memo about her conversation with him. On Nov. 7, she sent the worker an email advising she had completed her inves- tigation into both of the worker's complaints and found no evidence of harassment in either case. She said both were considered "false complaints of harassment," which were breaches of CPR's discrimination and ha- rassment policy and would be investigated. CPR decided to include the worker's phone calls of Oct. 24 and 25 in its inves- tigation. e worker was still off work for medical reasons, so it decided to wait until he returned to work before continuing. e worker provided CPR with an updat- ed functional abilities form on Feb. 12, 2014, that indicated he would be fit to return to work on a gradual basis, starting with two eight-hour shifts per week between Monday and Friday. Two weeks later, CPR began its investigation but held the worker out of ser- vice pending the investigation's completion. During the investigation, CPR felt the worker was "confrontational, adversarial and unco-operative." For example, when the investigator was interviewing him, the worker didn't ask for recess but instead sim- ply said he was taking a break. e worker also advised the investigator that he suffered from a medical condition and if the investi- gation became too much, he would have to leave and go home. On April 8, 2014, CPR dismissed the worker for making harassing and verbally abusive phone calls to the Manulife case manager and the CPR employee relations advisor, as well as making a false claim of harassment against his supervisor and pur- posely frustrating the investigation process. e arbitrator found the worker's conduct was "clearly unacceptable and deserving of some discipline." It was evident the worker had anger issues that required attention and his behaviour on the phone calls was "in- appropriate and unprofessional." ough the worker suffered from anxiety and was frustrated at how his complaints were being handled, this was no excuse for being disre- spectful towards the people on the phone, said the arbitrator. However, the arbitrator also found the worker's behaviour didn't include threats or demeaning insults and weren't on a scale of a serious industrial offence such as theft. In addition, the arbitrator expressed con- cern about the investigation into the work- er's complaints. Because the employee rela- tions advisor continued to investigate them after the worker's inappropriate behaviour on the phone, it raised questions of impar- tiality, particularly since it was determined that not only was there no harassment, but the worker filed false complaints. Making such an accusation rather than just advis- ing there was cause to investigate whether the complaints were false was going too far, said the arbitrator. is was backed up by union evidence that the worker had filed un- substantiated complaints in the past where CPR had taken no action against him. Worker didn't help his cause e arbitrator noted the worker's conduct during the investigation was "without a doubt unacceptable and a complete frustra- tion of the investigative process" and was an aggravating factor in determining the appropriate discipline, since it "indicated a complete failure to appreciate that his ear- lier conduct was inappropriate." e arbitrator found dismissal was too harsh and CPR should have applied pro- gressive discipline to correct the worker's behaviour. For his original misconduct, the arbitrator noted a short suspension or demerits along with an anger management referral would have been appropriate. How- ever, when the worker's unco-operative conduct during the investigation was taken into account, a three-day suspension was an appropriate penalty, said the arbitrator. CPR was ordered to reinstate the worker with the suspension instead See Canadian Pacific Railway and USW, Local 1976 (Mu- rillo), Re, 2014 CarswellNat 5028 (Can. Rail- way Office of Arb. & Dispute Resolution). « from CPR WoRKeR on page 1 employee with the impression it was a visual image of her thumbprint that was being col- lected and stored. e employer had an ob- ligation to reveal the precise nature of the personal information being collected if it wished to dispense with employee consent. Where the employer failed to satisfy the statutory requirements was in providing notice through employee newsletters that might not have been read by everyone. Ide- ally, the notice should have been provided in proximity to the collection and directly to each individual employee. It was also defi- cient in failing to set out the employer's au- thority for implementing the collection. e issues involved in implementing an attendance tracking system are not straight- forward under any of the information pri- vacy regimes. In all cases, employers would be wise to implement systems that are not overly intrusive — such as numerical rep- resentations of thumb scans versus thumb prints — provide clear and careful explana- tions of the information collected and the employer's need for and intended use of that information; ensure information col- lected is used only for its identified purpose; ensure that the information is properly se- cured and protected from improper access and disclosure; and observe any other appli- cable statutory conditions. Consent is not the only issue that may face an employer wishing to implement atten- dance monitoring. In unionized workplac- es, attendance tracking systems have been challenged with varying degrees of success. In such cases, individual employee consent may not be sufficient to avoid a challenge. In IKO Industries Ltd. v. U.S.W.A., Lo- cal 8580, an Ontario arbitrator recognized the employer's entitlement to monitor at- tendance but disapproved of its method, a finger scanning system similar to that in Empire Ballroom. e arbitrator found the invasion of privacy outweighed the employ- er's justification for the system. However, arbitrators disagreed with that conclusion in Canada Safeway Ltd. v. U.F.C.W., Local 401 (replacement of time clock and punch card system with a hand scanning device). Finally, it should be noted that human rights concerns may also be an issue. In 4407 ETR Concession Co. v. CAW-Canada, Local 414, an employer's use of a biometric scanner was found to have discriminated against employees on the basis of creed. e employer had failed to accommodate their religious beliefs by refusing to allow them to record attendance with a swipe card and password instead of the biometric scan. For more information see: • AFG Industries Ltd. v. U.S.W.A., Local 295G, 1999 CarswellOnt 2406 (Ont. Arb.). • Turner v. Telus Communications Inc., 2005 CarswellNat 3954 (F.C.), affd. 2007 Car- swellNat 172 (F.C.A.). • Empire Ballroom (1208558 Alberta Ltd.), Investigation Report P2008-IR-005 (Alta. Office of the Privacy Comm.). • IKO Industries Ltd. v. U.S.W.A., Local 8580, 2005 CarswellOnt 3690 (Ont. Arb.). • Canada Safeway Ltd. v. U.F.C.W., Local 401, 2005 CarswellAlta 2088 (Alta. Arb.). • 407 ETR Concession Co. v. CAW-Canada, Local 414, 2007 CarswellOnt 422 (Ont. Arb.). Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright's Calgary office. He can be reached at (403) 267-8225 or tim.mitchell@norton- rosefulbright.com. Tracking employees « from asK the exPeRt on page 1

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