An arbitrator in New Brunswick has ruled that an employer is entitled to access work-related text messages sent or received by a former employee over a specified period as part of an ongoing wrongful termination arbitration.
The decision clarifies the scope of employer access to electronic communications and the limits of employee privacy rights in disciplinary proceedings.
The employer — the Canadian Union of Public Employees (CUPE) union — sought disclosure of text messages exchanged between May 27 and June 1, 2024, concerning the bargaining of a local union’s collective agreement.
CUPE contended that M.D., a servicing representative, was responsible for ensuring local agreements adhered to national bargaining policies. He was dismissed for allegedly failing to uphold those policies and for not keeping his regional director informed of bargaining developments. A grievance was filed against CUPE by M.D.’s union, the Canadian Staff Union, on his behalf.
The employer argued that M.D.’s text messages were “arguably relevant” to the case, as they could clarify his role in the bargaining process and whether he followed internal protocols. The employer already had text messages between M.D. and his regional director but believed he likely communicated with other interested parties about the conciliation board proceedings, which led to a collective agreement the employer considered problematic.
M.D., represented by the Canadian Staff Union, opposed the request, asserting that the text messages were private and not relevant to the case. The union cited a provision in the collective agreement prohibiting employee surveillance and argued that it extended to text message disclosures. It also contended that the employer’s request amounted to a “fishing expedition” to uncover new grounds for termination rather than seeking relevant evidence.
Arbitrator’s analysis
The arbitrator determined that the text messages were “arguably relevant” to the case, as they could shed light on M.D.’s knowledge and decision-making during the bargaining process. The ruling emphasized that the standard for pre-hearing disclosure is lower than that for admissibility at a hearing, meaning that the messages need only have a logical connection to the dispute rather than being definitively probative.
“The grievor’s job involved supporting the employer’s locals in collective bargaining, including participation in conciliation board proceedings,” the arbitrator stated. “There is reason to believe that some of this information may be captured in the text messages he sent or received during the period when the conciliation board was meeting.”
The arbitrator also dismissed the union’s argument that only communications with the regional director were relevant. “The grievor’s alleged failure to keep the regional director apprised of the status of bargaining is only one of the grounds for termination,” the ruling noted. The employer also alleged that M.D. failed to uphold bargaining policies and the provincial bargaining strategy, making his broader communications relevant.
Privacy and collective agreement considerations
The union maintained that the collective agreement prohibited the disclosure of employee communications. However, the arbitrator found that the relevant provision — aimed at preventing surveillance and employer-initiated monitoring — did not extend to targeted disclosure requests in the context of a disciplinary proceeding.
“Surveillance implies ongoing or open-ended observation,” the arbitrator wrote. “A request for production of work-related communications relevant to a specific instance of alleged misconduct is distinct from monitoring and surveillance.”
The arbitrator further determined that M.D.’s privacy rights were not unreasonably violated by the order. While the grievor had a reasonable expectation of privacy in his phone, the arbitrator found that work-related messages were subject to disclosure if there was a legitimate need for them. The request was limited to messages related to collective bargaining and covered only a five-day period.
To safeguard privacy, the arbitrator ordered that M.D.’s counsel would review and filter the text messages before providing relevant ones to the employer. This measure was deemed sufficient to balance privacy concerns with the employer’s right to disclosure.
This decision underscores the principle that employee communications on employer-provided devices may be subject to disclosure in labour disputes, particularly when those communications are work-related and connected to the issues in dispute. While collective agreement provisions may limit employer surveillance, they do not necessarily preclude the targeted production of relevant communications in arbitration.
The arbitrator emphasized that the request for disclosure must be specific, relevant, and not amount to a fishing expedition. “The employer has stated its grounds for termination and is seeking evidence logically connected to those grounds,” the ruling stated. “It is not seeking evidence to discover new grounds for termination.”
The ruling also reaffirms that while employees have privacy rights, those rights are not absolute and must be balanced against the legitimate interests of the employer in disciplinary proceedings. The case provides further guidance on how arbitrators will assess privacy considerations against the need for disclosure in employment disputes.
For more information, see Canadian Staff Union v Canadian Union of Public Employees, 2025 CanLII 15826 (NB LA).
