In a recent Canadian case, the British Columbia Labour Relations Board addressed whether privacy rights entitle an employee disciplined for serious misconduct to remain anonymous in an arbitration award.
An employee of Sunrise Poultry Processors identified only as “BR” was dismissed for improperly signing company invoices. The dismissal was challenged under the collective agreement grievance procedure and referred to arbitration. The arbitrator determined that although BR had engaged in serious misconduct, dismissal was an excessive penalty and imposed a disciplinary suspension and transfer for one year.
In the proceeding, the union argued that the applicable British Columbia privacy legislation—the Personal Information Protection Act (PIPA)—prohibited labor arbitrators from identifying the person making the grievance in published decisions without that person’s consent.
In response, the arbitrator identified the employee by his initials and sought guidance from the Labour Relations Board. The board declined to rule on the matter and referred it back to the arbitrator.
In a lengthy decision dated October 28, 2013, the arbitrator determined that the PIPA did not prohibit the publication of BR’s name in an arbitration award without his consent.
The union sought to appeal that decision to the British Columbia Court of Appeal and the Labour Relations Board. In Sunrise Poultry Processors Ltd., BCLRB Decision No. B95/2014, the board held that it had jurisdiction to decide the matter.
For the purposes of the appeal, the board accepted that a labor arbitrator is an “organization” subject to PIPA and its general restrictions on the collection, use, and disclosure of personal information without the consent. The board noted that PIPA contained an exception when “disclosure is required or authorized by law” that applied to labor arbitrations.
The board agreed with the arbitrator’s conclusion that labor arbitration is no longer a private dispute resolution mechanism but a “statutorily mandated process for resolving mid-contract labour disputes without resort to work stoppages,” and that arbitrations are highly regulated and empowered by the Labour Relations Code. On an examination of the Code, including its provisions for publication, review, and enforcement of arbitration awards, the board was satisfied that the Code authorized the publication of an employee’s name without consent.
The board agreed with the discretionary, case-by-case approach to this issue used by the arbitrator and that protocols should be observed to limit the publication of personal information to only that reasonably required in the interests of justice.
Ultimately, the board upheld the arbitrator’s decision that BR’s name could be published without his consent and that this decision was consistent with the PIPA requirements and “sound labour relations policy.” The board noted, “Disclosure is authorized under the Code because it can serve the public interest … there is a public interest in the publication of the names of those who commit employment offences, privacy legislation is not intended to hide wrongdoing or to protect those who misconduct themselves (absent circumstances justifying such protection).”
