In the midst of a labour dispute between Rolls-Royce Canada and its union, a recent arbitration decision provides insight regarding privacy protection as well as freedom of association and expression, following the undivulged use of an AirTag geolocation device.
Background
In an attempt to obtain the address of one of the managers sitting at the bargaining table and organize secondary picketing in front of his residence, the local union president of Rolls-Royce Canada, Frédéric Labelle, installed an AirTag geolocation device under the manager's car to track his geolocation on several occasions. The identity of the local union president was discovered thanks to a Norwich-type injunction procedure that revealed the Apple ID linked to the AirTag found under the manager's vehicle.
Rolls-Royce Canada terminated the employment of the local union president for gross misconduct; the union filed a grievance contesting the dismissal.
Details of the arbitration decision
The president of the union had always denied having any connection whatsoever with the AirTag, let alone being the person who had installed it under the manager's vehicle, until a few weeks before the arbitration. Given this turn of events, namely, the complainant's admission, the only issue before the arbitrator was whether having purchased, activated and installed an AirTag (and consulted its notifications) to monitor the geolocation of an employer representative on several occasions, in order to organize picketing in front of his residence, merited the dismissal of the president of the union.
This arbitration case pitted the union's freedom of expression and freedom of association (as well as the rules governing the relative immunity of union representatives) against the manager's right to privacy, particularly during a labour dispute.
The arbitrator sided with the employer, ruling that neither the pressure felt by the grievor, as president of the union, on the progress of the collective bargaining file, nor the state of labour relations in the company and the bitterness of the labour dispute, could excuse such an invasion of privacy.
The fact that the employee only belatedly acknowledged that he had committed the act and that it was premeditated made the act unacceptable in the eyes of the arbitrator, who upheld the dismissal.
Key takeaways
The Rolls-Royce Canada Ltée and Labelle decision is one of the first to rule on the use of an AirTag-type device in such a context, now that geolocation has become a much more accessible technology than it used to be.
This arbitration decision provides an excellent demonstration of how freedom of association and freedom of expression are not without limits, and how even the escalation of a labour dispute does not give a union, nor its members, carte blanche in the means chosen to increase pressure on the employer.
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