Société canadienne des postes c. Syndicat des travailleurs et travailleuses des postes(CUPW N00-12-00003, Arb. Lauzon) 2014 LNSARTQ 349

On November 19, 2014, Quebec Labour Arbitrator Claude Lauzon issued a decision in a grievance between Canada Post and the Union of Canadian Postal Employees concerning Canada Post’s new “Practice Regarding Security Clearance of Personnel” which was implemented in 2013.

At issue, was whether Canada Post could require existing employees to provide their consent to criminal and credit checks.

Prior to the implementation of this new Practice, Canada Post required prospective employees to consent to background checks, criminal record and credit check, prior to being hired or obtain security clearance if the position required it. Background checks would be repeated if an employee was promoted or transferred into a position which required security clearance.

Under the new Practice, however, Canada Post could require current employees to consent to a criminal background check and a credit check if there was a change in their duties, a change to contractual agreements, or to allow Canada Post to comply with other obligations. These other obligations were not defined. If consent was withheld, employees could be reassigned, subjected to discipline, or terminated.

The Union grieved against the implementation of the portions of the new Practice which applied to existing employees. The Union argued that these portions infringed upon the privacy rights of employees and that the collective agreement did not allow Canada Post to implement the Practice.

Arbitrator Kenneth Swan rendered a preliminary decision in April of 2013. He found that Canada Post could not implement the new Practice until the issues raised in grievance had been fully determined. Arbitrator Claude Lauzon was appointed. He heard seven days of argument over the course of the next 15 months.

Canada Post argued that reliability checks on existing employees were necessary to maintain confidence in the mail system and to compete for contracts with the private sector. It also argued that this change was necessary to comply with the Treasury Board Secretariat’s practice on background checks: a practice Canada Post had committed to adopting.

As evidence for the need for reliability checks, Canada Post relied on a report published by the RCMP which found “that the Canadian postal system, more specifically Canada Post, is utilized by criminals to transport various contraband both domestically and internationally.” Several examples of mail theft, including gift card and iPhones, which were reported in the media were also cited as examples of the need for to implement increased security measures to maintain confidence in the mail system.

Lastly, Canada Post argued that the collective agreement did not impose any limits on its ability to implement this new Practice.

The Union, on the other hand, argued that there was no justification for requiring current employees to undergo additional background checks. Moreover, the collective agreement and previous arbitral decisions between Canada Post and the Union prevented Canada Post from implementing the portions of the Practice which apply to current employees.

Arbitrator Lauzon needed to weigh whether Canada Post’s need to maintain the safety and integrity of the postal system justified the infringement on the employees’ right to privacy. In order to make his decision, he had to consider the provisions collective agreement and previous arbitral decisions.

Arbitrator Lauzon determined that the issues raised in this grievance were substantially similar to issues that had been raised in a 1988 grievance involving the Union and Canada Post. The Union had grieved against a Canada Post policy requiring all employees provide their fingerprints.  In his decision, Arbitrator Bird determined that “the taking of fingerprints is a serious invasion of privacy” which could only be required Canada Post if a particular statute or a provision of the collective agreement gave it explicit authority to do so. He found that Canada Post did not have the authority to do so.

Arbitrator Lauzon found that he was bound by this decision, notwithstanding the passage of time and changes in the business environment for Canada Post. In particular, he found that there was no provision in the collective agreement which gave Canada Post explicit authority to require current employees to submit to additional background checks.

As such, he ruled that Canada Post was prevented from implementing the portions of the Practice which related to current employees on the basis that they were an invasion of privacy.

As evidenced by this decision, arbitrators and judges will generally decide in favour of protecting and preserving employees’ right to privacy. Employers who require additional sensitive personal information from current employees will likely need to demonstrate that the information is necessary and/or that there is a clear contractual or legislative basis for obtaining it.