The government announced plans to implement expanded security checks in the OPS. The rationale was:
…heightened security consciousness throughout the world, particularly in light of the extent to which the business of the province is conducted electronically and the importance of protecting the integrity of identify documentation…
The government’s plan was:
…to commence April 17, 2003, affecting about 2,000 employees. It is to affect two groups in Management Board, those who operate and support the Public Key Infrastructure system, the system that supports the electronic delivery of government services and those in corporate systems security. These employees will be subject
to CPIC (Canadian Police Information Centre) checks as well as a credit check. It is also to affect employees in the Ministries of Health and Long Term Care, Consumer and Business Services and the Ministry of Transportation where identity documents such as drivers’ licences, birth certificates and health cards are created. These employees are
to be subject to CPIC checks, local police checks to “identify whether the employee is known to the police”, fingerprint checks, national security checks and credit checks…
The checks were to be implemented by
…the execution of a consent form by the employee. In the absence of the consent form the Employer would not be able to obtain the checks. If an employee refuses to execute a consent form, the draft policy indicates that the employee will be removed from the position designated as requiring a security clearance.
Similarly, if the security clearance is not granted, the employee will not be able to remain in the position.
The Union grieved and sought interim relief putting the checks on hold until a final decision on the grievance.
To get interim relief, the Union must show it “…has an arguable case and that a balance of convenience or harm favours the…” Union.
The arbitrator, GSB Chair Susan Stewart, was satisfied there was an arguable case on the basis of claims that the policy “does not meet the test of a reasonable rule pursuant to the management rights provisions of the Collective Agreements, that it does not accord with the provisions of the Freedom of
Information and Privacy Act, and that it violates certain Charter rights”.
Turning to the balance of convenience, the arbitrator found the employer had not demonstrated any need to proceed prior to the full hearing.
In particular the arbitrator found there was no employer evidence that any operational problem would result.
…if the status quo that has existed for many years in these Ministries continues pending the resolution of this dispute…
On the other hand,
…if the initiative is allowed to proceed, there is potential harm that could not be remedied by an award of damages, should the Unions ultimately be successful. There is no way to actually reverse a fingerprinting exercise. The displacement of employees removed from their jobs because of a refusal to consent to a
security check or because of an unsatisfactory security check can be remedied on a going forward basis but not retroactively. The questioned integrity of those who may be displaced because of an unsatisfactory credit rating could not be undone…
The arbitrator’s conclusion was that,
…in balancing the interests in relation to this branch of the test for interim relief, that the privacy interests of the employees represented by the Unions clearly outweigh the interests of the Employer in the particular circumstances of this case.
Accordingly, it is my conclusion that the applicants are entitled to interim relief and the Employer is hereby directed to refrain from proceeding with its Personnel Security Checks initiative until such time as the grievances have been disposed of by this Board…