The appellant was a Helpdesk Analyst in the IT department. In
this role, she had special access to the respondent's network
including "Personal Folders" that were confidential and
could only be read by the employee assigned to a file. Here's
what the Court said about the appellant's employment and the
respondent's view of privacy and confidentiality at its
 The appellant was fired from her employment of 21 years for
accessing a confidential document contrary to internal privacy
protocols. She was part of the Helpdesk team which provided
internal technical assistance to other employees of the respondent.
The appellant was in a position that required the complete trust of
the respondent. Notably, she worked unsupervised in her day-to-day
functions and was one of only a handful of people that had complete
access to the respondent's computer system. As a result, she
had unfettered access to every document and file on the system,
including the private and personal files of the respondent's
 The respondent took privacy and confidentiality very
seriously. All of its employees were assigned personal folders
which were kept on the network and were to be used solely by that
employee. The folders were intended to be used for confidential
information (personal and business) pertaining to the company.
Employees were forbidden from accessing anyone else's emails or
files without permission.
At trial, the trial judge found that there was just cause to
terminate the employee. On appeal the Court considered:
whether the leading case of McKinley
was correctly followed; and
a subsidiary issue of whether the
trial judge correctly elevated the standard of trust on the basis
that the respondent is a financial institution.
What the Court of Appeal said
The trial judge applied the McKinley analysis properly. The
In my view, the trial judge did not err in principle in applying
the McKinley analysis. As the above-cited passage illustrates, she
applied a contextual approach and considered whether the nature of
the misconduct, which the appellant admitted was the result of a
deliberate choice, was reconcilable with a continuing employment
Standard of Trust
The Court found it was open to the trial judge to find that a
"fundamental obligation" of an employee placed that
employee in a position of substantial trust relationship:
The trial judge was aware of the length of the appellant's
service, which she noted at para. 3 of her reasons, and the
seriousness of the transgression, all of which she considered in
the circumstances of the employment relationship and the
respondent's clear policy on privacy-related matters. The
record established that accessing confidential documents only in
fundamental obligation of a Helpdesk employee. It was open to the
trial judge to find that this fundamental obligation placed the
appellant in a position of substantial trust, and made the
continuing existence of that trust fundamental to the viability of
the employment relationship. In addition, it was open to the trial
judge to find that, in the circumstances of the case before her,
breach of the confidentiality policy and failure to follow Helpdesk
protocols resulted in a fundamental breakdown of the employment
What this means for employers?
If privacy and confidentiality is a fundamental obligation in
the workplace, ensure you have and maintain policies specifically
dealing with access to information at your workplace. This is more
critical in industries where trust is of central importance (e.g.,
banking or healthcare) and particularly necessary where an employee
has unsupervised access to an IT system.
In your annual review process, review privacy and
confidentiality policies and ensure there is acknowledgement by
employees that they are aware of them. Any report of questionable
access should be properly investigated and if an employee is found
to be in violation of your policies and discipline is warranted,
apply your policy evenly and consistently.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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