August 03, 2022

The Right to Privacy and Workplace Investigations: Does a Legal Protection Exist?

The Right to Privacy and Workplace Investigations: Does a Legal Protection Exist?

In a recent decision, the Arbitral Tribunal ruled upon the right to privacy in the context of a workplace investigation involving sexual acts that took place outside of regular office hours.

The decision Syndicat des salariés(es) de l’agroalimentaire de Ste-Claire (CSD) et Kerry Canada inc. (Richard Guay)1 weighed in on questions regarding rumours of sexual harassment. The tribunal analyzed the employer’s right toinitiate an investigation pertaining to sexual relations between employees that occurred outside of working hours, andan employee’s obligation to collaborate in such an investigation.
The Facts of the Case
The Plaintiff, employed since 2018, worked as a mechanic for an agri-food company specialized in packaging products.He worked Mondays to Fridays on night shifts and was granted a high degree of autonomy in his work.
The relevant facts began to unravel on the night of a Christmas party organized by the employer. On the night inquestion, the employer had organized for transportation to bring employees to the party as well as to return them backto their respective homes at the end of the evening. On the way home from the party, several employees asked that thedriver make a detour and drop them off at a hotel, where they quickly found themselves in the Plaintiff’s hotel room.Several of them consumed recreational drugs, while all of the employees present began to participate in consensualsexual activities together.
The following Monday at the office, rumours quickly started circulating and the Human Resources department was soon made aware that multiple employees engaged in sexual activities together the night of the Christmas party. The rumours alluded to one employee qualifying the sexual activities as non-consensual. As a result, many employees began complaining that they did not want to work in proximity with those who were present at the hotel, attesting totheir “fears of working on the same shifts as the employees targeted by the ‘gang bang’ rumours” [our translation]. Thework atmosphere was described as heavy with certain employees not even being addressed by others.
Given the precarious circumstances, the employer made the decision to hire an external investigator to shed light on thesituation. Throughout the course of the investigation, the Plaintiff refused to collaborate; he lied and ascertained thatnothing happened at the hotel as well as denied the presence of drugs that night, both statements in direct contradictionwith the testimony of other credible witnesses. He moreover adopted a confrontational attitude towards the investigator, and repeatedly invoked his right to respect for his private life pursuant to section 5 of the Charter of Human Rights and Freedoms2. Shortly after the investigation, the Plaintiff was fired for failure to collaborate during an investigation, contrary to his obligation to act faithfully towards his employer, under section 2088 of the Civil Code of Québec3.
Following his dismissal, the Plaintiff argued that the events he was questioned on pertained to facts relegated to hisprivate life. He contended that he therefore could not be sanctioned by his employer for failure to collaborate wheninterrogated on such facts.
Matters in Dispute
The tribunal proceeded with analyzing the question of whether the employer was legitimate in its right to perform an investigation in connection with facts that took place in the employees’ private lives, and in the affirmative, if an employee must collaborate in such an investigation.
a) Notion of the “Workplace” and Causal Links
The arbitrator affirmed that an employer has the right to interfere in events that occur outside of the workplace if a linkexists that connects the mentioned events to the workplace climate. In the current case, the employer demonstrated “a sufficient link between the personal activities and the workplace to justify its intervention” [our translation] given the negative effects on the workplace climate and organization. The arbitrator added that one must consider that theemployer is required by law to ensure a healthy and respectful work environment for employees, where they can workwithout fear for their safety. While mere rumours circulating in an office about sexual activity outside of working hoursare not sufficient to deviate from the right to respect for one’s private life, the arbitrator explained that the fact that theemployer was informed of a possible sexual harassment by an employee gave it reason to investigate.
The arbitrator added that in order to establish a causal link, the acts occurring outside of the workplace must have avery serious negative influence on the life of the company. In other words, a relationship must be established betweenthe acts and the consequences on the company.
b) Obligation to Act Faithfully and to Collaborate During an Investigation
The arbitrator explained that the obligation to act faithfully towards one’s employer includes the responsibility toparticipate in all investigations initiated by the former, and to respond with frankness to questions regarding an allegedact derogatory to the dignity of his profession. In this case, a link was established between the events on the night of theChristmas party and the workplace in light of the major repercussions that followed. The Plaintiff was thus unjustifiedin invoking his right to privacy as a means to avoid his duty to collaborate with the investigator. He then failed in hisobligation to act faithfully in not responding honestly to the questions that the investigator asked him, and in notdemonstrating frankness and transparency.
Lastly, while the employer’s decision to impose a disciplinary measure was legally sound, the tribunal ultimatelyrescinded the employee’s dismissal as it did not meet the requirements of the collective agreement.
Practical Advice
There is a twofold lesson to retain from this case for all employers. Firstly, they should not turn a blind eye todiscussions that might circulate in the workplace concerning events outside of working hours. Secondly, they must proceed with caution when initiating an investigation into such matters. Namely, it is always to be kept in mind thatthese events must be linked to a serious negative consequence in the organization. Once the link is established, theemployer may remind its employees of their obligation to participate fully in the investigation and of the possibleconsequences if they fail to do so, all depending on the provisions of the collective agreement when applicable.

Latitude Management is a multidisciplinary firm with a focus on investigations, mediations, training and consultation regarding issues arising from harassment, violence and discrimination in the workplace. Please do not hesitate to contact us to learn more.

Article by

  1. Syndicat des salariés(es) de l'agroalimentaire de Ste-Claire (CSD) et Kerry Canada inc. (Richard Guay), (T.A., 2022-05-12), 2022 QCTA 224.
  2. Charte des droits et libertés de la personne, c. C-12.
  3. Code civil du Québec, c. CCQ-1991.