“PRIVACY AND EMPLOYEE DISCIPLINE”

Capital Punishment or Not

Evert Van Olst, September 28, 2010

Saskatchewan Access, Privacy, Security and

Records Management Forum, 2010

“Privacy and Employee Discipline”

Is this the end of the

World as we know it?

Primer on Employment issues (Employment Law 101)

• Just cause for termination

• Implied terms of the unwritten contract of employment

• Express terms of the written contract of employment

• Probation (term of contract/CBA)

Primer on Employment issues (Employment Law 101), continued

• Respect for privacy can be both express or implied term of employment

• Policies – shown, acknowledged, reinforced• Professional Code of Conduct

– incorporated into Job Description

– parallel processes

– Inconsistent messages

Distinction between OOS and In Scope

OOS

• Just cause only for termination

• Reasonable notice

• No “nearly” just cause

• Remedy – money “Expensive dismissal not wrongful dismissal”

Distinction between OOS and In Scope

In Scope

• Just cause for any discipline (reprimand, suspension, termination)

• Remedy: Reinstatement

• Replacement of penalty (Trade Union Act)

In Scope/Arbitration Land

– terminations not upheld for theft (even theft of drugs)

– disability/illness model

– the “hybrid” analysis

In Scope/Arbitration Land

– Privacy breaches and the disability model.

– Privacy breaches and progressive discipline

– Do labour arbitrators need to learn privacy law?

– Or do privacy people need to learn labour law?

Changing the Landscape

– Legislating penalties?– Should Privacy be “special”– Role of

– Long service– Previous good record– Remorse– Inconsistent penalties

Investigation Issues:

– Full opportunity to respond

– No right to silence

Proving Breaches:

– In civil court– In arbitration– Onus on Employer– Standard: balance of probabilities– Role of admissions

Case Examples:

- SEIU/Saskatoon Award

- SUN/Saskatoon Award

- CUPE/Regina Award

- HSAS/Saskatoon (settlement) (Facebook)

Facebook and the Workplace

– Outright ban or usage rules– What is “private”– What is “work related”– What is “too far”

Conclusion:

• To date privacy has not been treated as a special zone of conduct by arbitrators

• What policy reasons to create a special zone for privacy?

• If not, will the world end?