Driver applied to competitor during suspension but was let go when original employer provided information to the new one
An Alberta bus company violated a suspended driver’s privacy when it informed another bus company for whom the driver was working that he was suspended, the Office of the Alberta Privacy Commissioner (OPC) has ruled.
The driver worked for Calgary-based Cardinal Coach Lines when, on Feb. 26, 2007, he was randomly selected to take a drug test under the company’s drug and alcohol policy. The driver failed the test and he was suspended without pay until he was able to pass a another test to Cardinal’s satisfaction. Under the policy, he would continue to be tested randomly and another positive test would result in the termination of his employment.
The suspension left the driver with no income, so he applied to another bus company. As part of his application, he took a substance test, which he passed. He was hired by the second company on March 6 and he told his local manager at Cardinal of the new position and that he intended to come back to Cardinal once his suspension was over.
The driver also found out other employees knew he had been suspended, which made him suspicious since he hadn’t told any co-workers himself.
The regional manager at Cardinal didn’t know the driver intended to work for the rival company during the suspension, so when she heard about it she checked it out as the second company was a competitor. Concerned the driver had quit without notifying the company, Cardinal contacted the second company and asked for confirmation the driver was now working for it.
During the phone conversation, the second bus company confirmed the driver was working for it. Cardinal said it still considered the driver its employee who was on suspension and wanted to determine if he planned on returning to Cardinal. The second company was surprised since it thought the driver’s employment at Cardinal had been terminated. It asked for more details but Cardinal only said the suspension was for his failure to meet company policy.
On March 19, less than two weeks after being hired by the second bus company, the driver was called to a meeting with his new safety supervisor and told someone at Cardinal had given them information about his ability to do his job safely. He was asked to take a substance test, which he didn’t pass. The second company terminated his employment and the same day, the driver resigned from Cardinal and filed a complaint claiming Cardinal had violated his rights under the Alberta Personal Information Protection Act (PIPA) by revealing his personal employee information — the fact he was suspended and why — to other Cardinal employees and the second bus company without his consent.
Though the driver was on an unpaid suspension and no longer performing duties for Cardinal nor being paid, the OPC found there was a clear intention by the driver to return to his duties with Cardinal and by Cardinal to hold his position until the suspension was over. Even though he took a job with another company, the driver made it clear he would return when he was able, said the OPC. Therefore, Cardinal should not have assumed the driver had resigned when he started working for the second bus company, it found.
Revealing suspension to new employer wasn’t necessary: Adjudicator
When Cardinal told the second company the driver was its employee and under suspension for violating its policy, it in turn violated the driver’s privacy, found the OPC. The fact he was a Cardinal employee and he was suspended for failing a substance test was personal information it generated in the course of managing the employment relationship which it could not disclose without the driver’s consent, said the OPC. Though consent to disclose he had been employed with Cardinal could be implied by the fact he applied to the second company, there was no consent for Cardinal to use the information to confirm if he was employed by the second company.
The OPC found the purpose for Cardinal to disclose the driver’s information was reasonable, as it wanted to determine if he would be coming back to Cardinal after his suspension ended. However, the second company confirmed the driver was working for it before Cardinal disclosed the information about his employment and suspension and therefore it was no longer necessary to reveal that information.
However, the OPC didn’t find any evidence Cardinal had told its own employees about the river’s suspension. As it turned out, a non-managerial employee had spread the word about the failed substance test. The employee knew he had been tested and assumed he had failed because the suspension happened right after the test. The employee testified nobody in management had talked to him about it.
The OPC found Cardinal contravened PIPA and ordered the company to cease disclosing information about the driver’s employment and suspension. See Office of the Information and Privacy Commissioner Order P2009- 011 (March 30, 2010), K.H. Ridley — Adj.
