Another employer has run afoul of privacy laws in Canada, and,
once again, the employer's actions may have been lawful if the
employer had a clearly communicated policy in place.
In this case, a former employee of a
non-profit organization (the "Employee") complained to
the Alberta Office of the Information and Privacy Commissioner,
alleging that his former employer (the "Employer")
contravened the Personal Information and Protection Act,
SA 2003, c 6.5 ("PIPA") by tracing the numbers
he had dialled on his company cell phone.
The employee learned his calls had been traced after he was
called into a meeting with his managers and chastised for using the
phone for personal calls. At the time of the meeting, the Employee
had just less than one year of service with the Employer.
The Employer argued the numbers were traced as a part of an
investigation to determine whether the Employee was breaching his
employment contract by making the personal calls. The
Employer's stated purpose of the investigation was not to
uncover the content of the calls or what the calls revealed about
the Complainant, but to determine whether the calls were
The Employer claimed it had an unwritten "acceptable
use" policy that indicated company cell phones could only be
used for work-related purposes, and that this policy was
"customarily" communicated verbally to each employee when
they were provided with a company cell phone. The Employer also
claimed that all of its policies were incorporated into the
Employee's employment contract and, therefore, a breach of the
policy is a breach of the contract. This was an important
distinction for the Employer to try to make, because PIPA
allows employers to collect, use and disclose employee's
personal information without the consent of the employee when the
Employer conducts "investigations" related to the
employee's breach of the employment contract.
The Employee denied being told he could only use the phone for
work, adding he was only told that the phone's calling plan
included a given amount of local and long distance air time per
month, and he would be contacted if he went over the allotted
amount, which he never did. He also claimed it was typical for
employees to use other work equipment, such as landline phones and
photocopiers, for personal reasons, provided that the use is
limited and reasonable.
The adjudicator held that the evidence indicated the Employer
did not have an acceptable use policy for cell phone use until
after the tracing occurred. He added that, pursuant to
PIPA, a policy must exist, it must be clearly communicated
to employees, and it must be incorporated in the employee's
employment contract before an employer can conduct an investigation
of a putative breach of a policy that is incorporated as a term of
an employment contract.
The adjudicator added that tracing phone calls made on company
phones may not contravene PIPA in circumstances where the
employer does not have a policy and the employee is alleged to be
harassing or threatening others or tarnishing the employer's
reputation, as these actions may be considered an implied term of
the employment contract.
This adjudicator's decision is one in a line of recent
privacy law decisions in an employment context, including R v Cole and Jones v Tsige, in which statutory and
common laws were violated.
Judges and adjudicators in Canada are sending a public message
to employers to use and protect private information with care.
Employers are wise to pay attention.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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