Privacy is an increasingly complex issue in the contemporary workplace, and violations are certainly not confined to the private sector. On March 29, 2011, the Crown Employees Grievance Settlement Board found Ontario’s own Ministry of Labour guilty of acting against the privacy rights of its own employees.
How It Happened
Last year, a health and safety inspector discovered that, without his consent or knowledge, he had been the object of a criminal background check by the Ministry. This action violated both his privacy and his collective agreement. The Ontario Public Service Employees Union (“OPESU”) responded by filing a grievance.
The issue has its roots in a 2009 Supreme Court ruling that sheds light on establishing the credibility of police investigators who testify at criminal cases. The decision requires the Crown to disclose information about serious misconduct on the part of investigating police officers. On the heels of that decision, lawyers defending those accused of health and safety violations began similarly requesting criminal and disciplinary information for the investigating inspectors from the Labour Ministry.
Implications Going Forward
So, to what extent is privacy a right for employees? OPESU lawyer Kate Hughes, concluded: “Your criminal or your disciplinary record are private to you.” The Crown Employees Grievance Settlement Board chair, Susan Stewart, agreed, stating that the Labour Ministry’s aggressive and secretive actions were unreasonable.
As a result of the Board’s ruling, a trial judge hearing a case involving health and safety violations will need to determine on a per-case basis the relevance of an inspector’s criminal record. The Board’s ruling applies by extension to all government employees who carry out inspection and enforcement duties.
Points to Note
Privacy has been a growing issue in the modern workplace over the last few years. As the rate of information collection, storage and disclosure accelerates, the issue can only be expected to grow as a point of contention between employees and employers. As the above example illustrates, no employer, not even a regulatory body such as the Ministry of Labour, is exempt from the need for policy and compliance regarding employee privacy.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues.
For more details, see The Toronto Star (Province slammed for secret criminal checks on labour inspectors, by Tracey Tyler, March 30 2011).