Written by Daniel Standing LL.B., Editor, First Reference Inc.
In modern times, employers and investigators alike must be increasingly technologically savvy. Evidence can take on many forms, including texts, emails and information posted to social media accounts. Many employers provide phones to their employees which are password-protected and rely on virtual storage of data in the “cloud.” As the workplace becomes further digitized, and as more offices become mobile or virtual, workplace investigations will increasingly target such elusive electronic data. As illustrated in the recent British Columbia labour arbitration decision District of Houston v. Canadian Union of Public Employees, Local 2086, 2019 CanLII 104260 (BC LA), sometimes when evidence is stored virtually, it is not so easy to access. Employers can learn essential lessons from this case in terms of the policies they craft in dealing with such work-issued devices, and how they approach investigations concerning them.
The grievor, Steven Standbridge, was hired in February 2014 to maintain water systems throughout the District and to operate various pieces of equipment. Initially, he used a personal cellphone for work-related business and was reimbursed his expenses by the employer. At some point, the grievor’s own cellphone stopped working, and the employer provided him with an Apple iPhone which, according to the grievor’s wishes, the employer set up using the grievor’s Apple ID account. As a result, the private data the grievor had stored in the iCloud would be accessible from the phone. There was disagreement between the grievor and the individual, as to who set up the phone and whether the Apple ID was disclosed as belonging to the grievor’s wife or the grievor.
At that time, the employer had a mobile devices policy which covered the use of mobile devices by employees during working hours. The policy stipulated that the records stored on such a phone were the property of the District, as were the phone number, email addresses and other contact information associated with the phone. At the hearing, the grievor acknowledged that the policy applied to him, although he denied reviewing the policy when he began his employment.
In August 2017, the president of the local union approached the employer with various complaints he had received from several female employees-some of whom worked in remote areas of the District-who were “creeped out” by the grievor’s occasional presence and suspected him of taking pictures of them with his cellphone. The Chief Administrative Officer of the District decided to investigate. He requested and obtained the grievor’s cellphone, and began to view the pictures stored on it. The grievor requested to be present while the search of the phone occurred, but the employer denied his request. Finding nothing untoward, the Chief Administrative Officer had to curtail his investigation so that he could attend a meeting. Intent on resuming his search of the phone a short time later, he discovered he could no longer access the information on the cellphone, and, even with the assistance of Apple support, no data on the phone could be recovered. When he met with the grievor, he was advised that the grievor’s wife had deactivated the phone and that the grievor did not have the Apple ID or password in order to assist the employer. The District instructed the grievor to obtain and provide this information within a few days. The grievor testified that he asked his wife to assist the District and provide the requested information, but she refused to do so. According to the grievor, when his wife says “no” she means “no.” Without having received the required information by the deadline it had imposed, the District suspended the grievor without pay pending an investigation into the complaints made by his female co-workers. During its investigation, the employer received an expert report indicating that the phone had apparently been erased using the “Erase My iPhone” feature from the user’s iCloud account.
According to the grievor’s termination letter, while the four female employees’ allegations were serious and deserving of discipline, it was his conduct about the cellphone that constituted serious insubordination. Citing irreparable harm to the employment relationship, the employer terminated the grievor’s employment for just cause.
The arbitrator’s decision
The arbitrator noted the polar opposite positions taken by the parties: the employer maintaining that it had just cause, whereas the grievor is maintaining he had done nothing to warrant any discipline at all. Of some significance for the arbitrator was the fact that the employer’s policy did not prohibit personal information on an employer-owned mobile device. Furthermore, it was clear when the phone was set up that it would be replacing the employee’s personal cellphone, and that it would contain some personal information since it was being set up with an Apple ID and password provided by the grievor. Therefore, according to the arbitrator, some accommodation for these rights would have been expected in the circumstances.
The arbitrator accepted that it was the grievor’s wife who wiped the phone remotely but acknowledged that the grievor’s single effort to request that she provide the information to the employer was hardly a sincere effort to meet the employer’s legitimate concerns. However, the wiping of the cellphone could likely have been avoided, reasoned the arbitrator, if the employer had accommodated the grievor’s privacy rights by allowing him to be present when the employer examined the contents of the phone.
The arbitrator agreed with the union that there was an element of double jeopardy in the employer’s imposition of an unpaid suspension during the investigation, coupled with the ultimate disciplinary measure of the termination. The arbitrator ultimately concluded that there was just cause for some form of discipline but decided that various circumstances mitigated against the termination of employment. First, there was no clear evidence of “spying” as alleged by the various female employees. In addition, the employer’s interview of the grievor was “cursory at best”, and no serious effort was made to challenge the grievor on his activities in order to establish that he had been spying on his co-workers. In short, there was insufficient evidence in support of this allegation. Additionally, the termination was unsupported by the allegation of ongoing insubordination because, first, the employer was wrong to assert that the grievor could not have personal information on the phone due to the employer’s condonation of the use of a personal Apple ID in setting up the phone. Second, in failing to allow the grievor to be present when the phone’s contents were examined, the employer failed to respect the limited privacy rights the grievor had in the phone’s contents. The arbitrator concluded by noting that the usual remedy would be to order the employer to reinstate the grievor with appropriate compensation. Given that the grievor took on alternative employment during his suspension and afterwards, the arbitrator invited written submissions from the parties with respect to an alternative order.
With the nearly seamless integration of electronic data storage and communication in virtually every facet of modern society, employers will be hard-pressed to insist that employees refrain completely from personal use of work-issued electronic devices. A more realistic policy will allow for some incidental personal use. As such, employers need to be cognizant of the limited privacy rights of employees in the data stored on such devices. To avoid the pitfalls experienced by the employer in this case, when conducting an investigation, an employer should seek to balance the competing rights (the employee’s privacy, and the employer’s obligation to investigate certain work-related complaints). That could have been accomplished here by involving the employee who is under investigation in the actual examination of the electronic device. Furthermore, employers and investigators need to be increasingly more sophisticated and knowledgeable about methods by which the device can be cleared of all pertinent data remotely by a third party and thereby eliminate the possibility of a full investigation. This unfortunate situation can likely be avoided by conducting a full investigation at the earliest opportunity and eliminating or reducing the possibility of a thwarted investigation.