( Disponible en anglais seulement )
Author: Raphaël Viens Côté
Employer’s right to post employee pictures in the workplace: Syndicat des travailleuses et travailleurs de Brasserie Labatt (CSN) et Brasserie Labatt du Canada, s.c.s. (grief collectif), 2015 QCTA 119
The Union representing Labatt’s employees of the Montreal Plant never filed a grievance when the employer posted pictures of its employees on boards in the Plant to highlight social events or to identify the members of various committees such as the health and safety committee. It also did not complain because pictures of employees appeared on Labatt’s intranet and neither did it complain of the use of employee pictures to demonstrate best practices at various workstations.
But when the employer, Labatt Breweries of Canada, decided to implement its “Voyager Plant Optimisation” which included “Key Performance Indicators” it faced serious opposition from the Union. Why? Amongst other things, because of the use, without prior express consent, of the employee pictures next to their respective workstations.
Indeed, according to the plan devised and deployed worldwide by AB InBev, Labatt’s owner, each workstation represented an individual KPI in itself and the use of the picture was intended to create a feeling of “ownership” of each employee to his or her KPI.
The Union filed a grievance alleging that its members feared being identified as responsible for weak performance of their workstation which could simply be the result of poor machinery. Said grievance was not based on the collective agreement, since it did not contain any provisions dealing with the matter, but rather the grievance alleged a violation of the right to privacy guaranteed by the Quebec Civil Code, the Quebec Charter of Human Rights and Freedoms and the Quebec Act respecting the Protection of Personal Information in the Private Sector.
Arbitrator Faucher analyzed the criteria of public circulation and the criteria of consent both being key to a finding of a violation of the right to privacy. She decided that the display of an employee’s picture at a workstation in a plant could not be assimilated to public circulation, since access to the plant itself was restricted to employees only and that these employees already knew which employee worked at each workstation. As for the issue of consent, the arbitrator concluded that the consent the employees had given so their pictures could be used on their punch card implicitly applied to the new production management policy.
The arbitrator concluded that no privacy right had been breached and she dismissed the grievance.