Earlier this year, on a clear March day, a CP train traveling near Revelstoke, British Columbia, failed to respond to a stop signal and broadsided another CP train at a speed of 27mph. Fortunately, the collision did not result in any fatalities, although one train engineer was airlifted to Calgary for medical attention. As a result of this accident, and in the context of its post-accident investigation, CP sought to introduce a policy that would require that any employee involved in an otherwise unexplained serious accident must provide the records of their cell phones, smart phones, Blackberries or similar devices in the course of company investigations. In 2009, CP had adopted a policy restricting the use by employees of personally owned and company issued communication devices while operating vehicles, on-track equipment and other mobile equipment. That policy supplemented the prohibition against the use of personal communication devices for any non-work related purpose set out in the Canadian Railway Operating Rules1.
The Teamsters Canada Rail Conference (The Union) grieved CP’s initiative, alleging that it would bring about a “seismic shift” in the company’s conduct of investigations and that the policy was in violation of the employees’ privacy, human rights, labour, Charter and collective agreement rights, including the right to a fair and impartial investigation. At arbitration, the Union argued that 1) the request for records was unreasonably intrusive thereby violating the employees’ privacy rights; 2) the policy would tend to produce erroneous, misleading or inaccurate results and was inconsistent with the collective agreement’s precepts of a fair and impartial disciplinary investigation; and 3) should the production of records be permissible, it should be subject to the privacy safeguards developed in respect of other invasive practices such as drug and alcohol testing.
Faced with the task of determining whether “a railway (can) ask its employees to provide copies of their personal wireless telephone records following a serious accident or incident,”2 Arbitrator Picher first considered the circumstances in which the personal communication device records had been requested by CP. He recognized the highly safety sensitive nature of railway operations in Canada, owing to its complex system of track crossovers, signals and switches and the high tonnage of trains generally. He also noted that the employees in the railway industry work in unsupervised conditions, frequently hauling dangerous goods through various kinds of terrain, on a twenty-four hour, seven day a week basis. Secondly, Arbitrator Picher acknowledged the balance which must be struck between employees’ privacy rights and those of a railway employer to ensure the safety of its operations. He reasoned on this point that as a railway employer, CP had a legitimate interest in knowing and verifying that an employee’s personal electronic communication device was not the cause of possible distraction, at or before the time of a serious accident or incident. In weighing of these two competing interests, he concluded that the employee’s right of personal privacy must cede to the greater interest of public safety. Thirdly, Arbitrator Picher considered the scope of the electronic communications records request which CP was advocating, noting that the company was not seeking to obtain the actual contents of the communications or the identity of the persons with whom the employee may have been communicating, but was merely attempting to determine whether an employee was engaged in personal electronic communication while on duty. He further cautioned that to constitute a legitimate interest of the company, the information request could not cover more than the time surrounding the accident.
Much of Arbitrator Picher’s analysis in this case is centered around the well established privacy infringement test3 articulated by the Privacy Commissioner of Canada in regard to the application of the Personal Information Protection and Electronic Documents Act (PIPEDA) and the collection, use and disclosure of personal information. Picher noted that as important as PIPEDA is for the protection of personal information in Canada, it is not a code of unconditional absolutes, such that there are circumstances in which it can be appropriate to collect and use personal information as an exception to our well entrenched privacy rules.
The following is Arbitrator Picher’s application of the PIPEDA test:
- Was CP’s proposed policy necessary to meet a specific need?
It was reasonable and necessary for CP to confirm whether the employees’ personal devices were in use (therefore creating a distraction which may have contributed to an accident) at a moment critical to safe operations, given that engineers and conductors work away from the eyes and ears of their employer; the specific need to do so being confined to serious accidents.
- Was CP’s proposed policy effective in meeting that need?
The electronic device records would provide clear information as to the use of a given cell phone or other device at a particular time, whether for making a call, texting or emailing. This in turn could effectively allow the company to determine whether a personal electronic communication may have contributed to an accident.
- Would the employees’ loss of privacy be proportional to the benefit gained?
The loss of privacy would be extremely limited given that the information gathered would be limited to whether the electronic device was in use at times material to the accident. On the other side of the equation, the investigative ability of the company to detect and address cases of policy violation by employees would benefit the employer, other employees and society at large, with the higher order of benefit being the avoidance of potentially fatal collisions.
- Is there a less privacy-invasive way of achieving the same end?
Given that the goal was to secure the best evidence (in the form of documentary proof) surrounding the violation of a cardinal railway operating rule, there could be no equally reliable less privacy-intrusive way of proceeding.
On the basis of his analysis, Arbitrator Picher concluded that CP’s policy was compliant with the requirements of PIPEDA and did not violate the employees’ human, Charter or collective agreement rights. Characterizing the company’s initiative as a “reasonable and necessary exercise of its management prerogatives”, he noted that the pursuit of safe operations was at the centre of CP’s legitimate business interests and public obligations.
Arbitrator Picher’s decision offers a refreshing take on the familiar privacy refrain. It serves to illustrate the importance of well designed employment policies which strike that difficult balance between workplace and public safety on the one hand, and the protection of employee privacy and other related personal rights on the other.