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Arbitrators should apply ‘privacy spectrum’ to personal information

arbitrators-privacy-spectrumThe names of people involved in labour arbitration should be disclosed with the arbitrator’s decisions, unless there are compelling reasons not to do so, according to the open-court principle and the public’s interest. The British Columbia Labour Relations Board affirmed the law in a recent review of an arbitrator’s decision. The board also affirmed arbitrators’ discretion to disclose or withhold personal information under the Labour Relations Code and Personal Information Protection Act.

The case arose when a unionized employee was disciplined and the union grieved the punishment. The employee sought to have his name left out from the arbitrator’s decision-or anonymized by using only his initials. The union presented a number of arguments for why grievors’ and witnesses’ names should not be published in arbitration decisions:

  • The open court principle does not apply to labour arbitrators, because labour arbitrators are primarily a private dispute mechanism
  • Privacy legislation is quasi-constitutional in nature, and when combined with the application of Charter values, it should take precedence over the traditional custom of publicizing the names of grievors and witnesses
  • The publication of the grievors’ and witnesses’ names was not material to the resolution or understanding of the legal issues in dispute
  • The issue of privacy has taken on even more importance given new technological innovations (such as the Internet) that substantially increase the opportunities for misuse of personal information

Essentially, the union sought a blanket ban on the publication of grievor and witness names in labour arbitration decisions.

The employer responded that:

  • The inherent nature of the adjudication process, which requires the adducing of evidence and the resolution of legal issues, along with the publication of the labour arbitrator’s reasons, requires the collection, use and disclosure of personal information arising in the workplace
  • The participation of grievors and witnesses in arbitral processes gives rise to implied consent
  • Labour arbitration is not a private dispute resolution mechanism but rather is statutorily mandated under the Code, and therefore the open court principle applies
  • Non-publication of names in awards should be the exception, not the rule, and this case is not an exception
  • Arbitrators have the discretion not to publish the names of grievors or witnesses in their awards, or other identifying personal information, and often exercise this discretion in cases involving medical evidence
  • The current practice of labour arbitrators adequately addresses the union’s privacy concerns

The arbitrator agreed that the privacy landscape has changed in recent years and that keeping personal information private is more important than ever:

Whatever legislative scheme may ultimately apply, or whether or not the open court principle applies, an arbitral approach must be developed in respect to the issue of privacy, and its application to the disclosure and publication of personal information in arbitration awards.”

Arbitrators should consider a “privacy spectrum” that applies different levels of protection to various types of information:

Personal information such as birth dates, social insurance numbers, credit card numbers, and financial account numbers should generally be omitted. Names of family members, co-workers, business associates, community and recreational groups, as well as addresses and geographical information especially in smaller communities should not be published if they are not material to the reasons. Similarly, an individual’s marital and family status, sexual orientation, religious or political beliefs, race, gender and physical or mental disabilities should not be published unless such information is necessary to explaining the reasons for the award. Where such personal information is material, it may be appropriate to anonymize the person’s identity.

Where health records are relevant, disclosure should only be to the extent necessary and ‘it is often the practice of arbitrators to anonymize (use initials) the name of the individual whose health records have been disclosed and are to be published in an award.’ Similarly, the identities of persons who have been subject to sexual, physical or mental abuse, as well as minors and ‘innocent third parties’ are anonymized when the personal information is necessary to the decision.”

In addition, the arbitrator noted that a grievor or witness retains the right to request anonymity with respect to labour arbitration decisions, although it is up to the arbitrator to grant the request.

However, the arbitrator accepted that the open court principle does apply to labour arbitration and, therefore, it behoves arbitrators to publicize the names of participants in arbitration proceedings, except where it is inappropriate to do so, i.e., per the privacy spectrum outlined above. In other words, it would be inappropriate to apply a blanket ban on disclosing personal information to the issue of privacy in labour arbitration.

The Labour Relations Board agreed with the arbitrator’s decision and denied the union’s appeal.

Read the case here.

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Adam Gorley

Adam Gorley is a copywriter, editor and researcher at First Reference. He contributes regularly to First Reference Talks, Inside Internal Controls and other First Reference publications. He writes about general HR issues, accessibility, privacy, technology in the workplace, accommodation, violence and harassment, internal controls and more. Read more
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