2. 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.
Malcolm MacKillop | 2019
3. 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.
4. 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.
Malcolm MacKillop
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.
5. 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?
6. 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.
Malcolm MacKillop
