With the ever increasing use of technology in the workplace, such as laptops, cell phones, and even smart watches, comes a number of concerns, including safety. The issue of whether an employer had the right to request an employee’s personal cell phone records after a serious accident was considered in Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Case No. 3900) (“CP Rail”). In that case, the Arbitrator found that the answer was yes.
Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In CP Rail, the employer had a policy in place that prohibited the use of cell phones during work hours. The employer then implemented a broader policy that required employees to submit cell phone records upon request if an employee was involved in a serious workplace accident that was otherwise unexplained. The employer wanted the information from the cell phone that would identify where and when the cell phone was used. An employee’s failure to comply with the policy would not result in discipline but CP Rail reserved the right to draw an adverse inference against employees who refused to co-operate with the policy.
The union filed a grievance alleging that the employer’s policy was overly intrusive and infringed on the employee’s privacy rights. During the hearing, the employer argued that they needed the cell phone records to complete a full investigation of the matter and to ensure safe operations overall.
The Arbitrator dismissed the grievance, finding that based on the safety sensitive nature of the railway industry and the limited scope of the production request, the policy was reasonable and justified. The Arbitrator found there was no other equally reliable and less privacy intrusive way of completing an investigation into a workplace accident.
However, the Arbitrator’s finding in CP Rail does not mean such a policy would be upheld in every case. Before an employer implements such a policy regarding obtaining personal cell phone records, it ought to consider the following:
- Is the employer engaged in a “safety sensitive industry” or do certain employees work in “safety sensitive positions”?
- Does the policy address a legitimate employer concern?
- Does the policy infringe upon employee’s’ right of privacy as little as possible?
Another factor that may protect similar policies regarding cell phone records is Ontario’s Occupational Health and Safety Act (“OHSA”). The OHSA requires employers to take every precaution possible to protect workers. If there is reason to believe that on-duty cell phone use would interfere with the protection of workers, it may be reasonable for an employer to implement a similar policy to that in the CP Rail case, in order to ensure safe operations.