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"Swipe card" records inadmissible to prove time theft

Jurisdiction: - British Columbia
Sector: - Manufacturing;

In the recent arbitration decision Zellstoff Celgar Ltd. v. Public and Private Workers of Canada, Local 1, [2017] B.C.C.A.A.A. No. 53, an arbitrator excluded evidence obtained in breach of PIPA but allowed the employee's admission against interest procured after being presented with the excluded evidence. 

The employer terminated the grievor for time theft after learning his time cards did not align with the 'swipe card' records showing when the grievor entered and exited the building. The arbitrator accepted the union's argument that employees were not notified the swipe card records would be collected and used by the employer, and therefore the data was collected contrary to PIPA and should not be admitted. 

However, the arbitrator accepted the grievor's admission of time card discrepancies was admissible, despite the confession having been procured after being confronted with the swipe card records. 

The decision is not pubicly available, but it is discussed in detail in a preliminary decision involving the termination of employment of two other employees under the same circumstances: Zellstoff Celgar Ltd. v. Public and Private Workers of Canada, Local 1, 2017 CanLII 55591 (BC LA). 

The decision has some interesting implications for employers as it suggests they do not have an "at large" right to access their own records to impose discipline where the information can be considered "personal information" under PIPA, and employees are not specifically advised the records are being collected and used by the employer.