Arbitrator Justifies Employer Access to Employee’s Personal Cell Phone Records

Teamsters Canada Rail Conference v. Canadian Pacific Railway Company, (June 23, 2010) Case No. 3900 (Picher).

Following a number of serious railway collisions, the Canadian Pacific Railway (“CPR”) adopted a policy asking employees to provide copies of their personal cell phone records as part of an investigation regarding any significant accident that continued to be unexplained. CPR explained that the policy was created for the legitimate purpose of knowing whether communication devices had been used in proximity to a serious accident. The policy stated that any personal information regarding the phone numbers called or the contents of a text message could be concealed.

The arbitrator decided that CPR’s policy did not constitute a violation of employees’ privacy rights, despite the union’s objections that the policy contravened the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”). The arbitrator reasoned that there must be a balance between both parties’ interests – on one hand, the employee’s privacy rights and, on the other hand, the employer’s concern for ensuring safe operations. The arbitrator decided that the scale must tip in favour of the employer where a serious workplace accident is involved. The policy, he explained, was a reasonable tool created to ensure safe operations.

The arbitrator noted the importance of safe railway operations and explained that unsupervised CPR crews worked within a complex system of switches and signals that require the care and attention of the employees. The arbitrator also took into account prior arbitral decisions where the particular nature of railway operations had been recognized. The arbitrator explained that, in some cases, it is necessary to justify the decision of a Company to identify employee conduct which threatens safe operations. The arbitrator explained that, despite the personal privacy interests that are present when a person uses a mobile telephone (or other device), there nevertheless has to be a point where that interest is forfeited in order to ensure public safety.

This case may be of interest to employers who are considering the implementation of a similar policy. However, it is important to take notice of the safety-sensitive nature of the industry in this case. Further, the fact that the company did not seek private information was an important consideration. No information was collected as to who the employees communicated with, or what they were communicating, rather, CPR’s policy sought only to determine if an employee had operated a communication device in proximity to a serious accident.