On December 7, 2012 Canada Post announced its intent to implement mandatory security screening for all employees, as set out in a “Practice Regarding Security Screening of Personnel.” Under this process, the employer would subject employees to criminal record checks and, in some instances, fingerprinting and credit and solvency checks.
Refusing to cooperate with the screening process or non-compliance with the practice would lead to discipline, including discharge.
The “Practice” would also allow the employer to update the employee’s security clearance every 10 years, or more often, depending on changes in duties, contract agreements, legislation and other obligations (i.e. at the employer’s whim).
After a series of consultation meetings, CUPW informed the employer that it was opposed to this new policy, slated for implementation on April 29, 2013, and that it would be exploring all available avenues. In a letter dated April 11, 2013, the Union informed Canada Post that it was filing a national grievance under clauses 9.17 and 9.88 of the collective agreement with a national arbitrator, along with an application for a cease and desist order against the policy’s implementation (similar in nature to an interlocutory injunction).
On April 22 and 23, 2013, the parties put forth their respective positions regarding the granting of the Union’s application for a cease and desist order. On April 26, 2013, arbitrator Swan granted the Union’s cease and desist order. As a result, the employer was required to suspend the mandatory security screening process it intended to implement on April 29, 2013. Subsequently, an initial hearing on the merits of the grievance was held in Ottawa on October 9, 2013, before arbitrator Lauzon.
Ten more days of hearings took place, the last of which occurred on September 10, 2014. The cease and desist order remained in effect through continuation orders until a decision was received on November 19, 2014. That decision permanently maintains the order given to the Corporation to end its mandatory security screening process.
The arbitrator sided with the Union, basing his decision on the Canadian Charter of Rights and Freedoms, the Personal Information Protection and Electronic Documents Act, and arbitrator Bird’s formal decision dated May 3, 1988 (730-85-00037).
Arbitrator Bird’s decision states:
“… The right of privacy, including the right of an employee to refuse to permit an employer to take fingerprints, is fundamental to any free society and should not be infringed upon by an employer in the absence of clear and unequivocal statutory authority, clear and unequivocal contractual language or by a clear and compelling inference to be drawn from contractual language. None of these is present in the grievance before me.” Arbitrator Lauzon, for his part, effectively captures the Corporation’s intent when he states: “[Translation] … In the case at hand, what we have is merely a corporate requirement that is not supported by any legislative provision, and that is predicated solely on business considerations.”
It was then ordered that the Corporation cease requiring employees to consent to criminal background and credit checks and the verification of other personal information, and to providing fingerprints to the Corporation or its officials.
In addition, the arbitrator ordered that the Corporation cease imposing forms of reprisal on employees who refuse to consent to the verification of their personal information.
For further information on the security screening policy, please read the bulletin entitled Mandatory Security Screening Policy for Urban and RSMC, dated March 27, 2013, which can be found on the National CUPW website (Bulletin #2011-2015/151).