IN THE MATTER OF AN ARBITRATION PURSUANT TO  
THE LABOUR RELATIONS CODE, R.S.B.C. 1996 c. 244  
BETWEEN:  
KONE INC.  
(KONEor the "Employer")  
AND:  
INTERNATIONAL UNION OF ELEVATOR  
CONSTRUCTORS, LOCAL 82  
(the "Union")  
Installation Back Reporting Tool (IBRT) 2.0 Grievance  
AWARD  
Arbitrator:  
Counsel:  
Koml Kandola  
Mike Hamata, Jordan Michaux (up to the  
interim application) and Andrew Peng, for  
the Employer  
David Aaron and Bennett Arsenault, for  
the Union  
Date of Hearing:  
Date of Decision:  
October 12, 13, 14, and 15, 2021 (via  
videoconference), followed by written  
submissions  
January 14, 2022  
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I.  
INTRODUCTION  
The Union filed a policy grievance relating to KONEs implementation of the  
1
Installation Back Reporting Tool 2.0 application (IBRT 2.0) on the work-issued mobile  
devices of its construction employees (the Grievance). Among other things, IBRT 2.0  
utilizes GPS technology to determine how far an employees work device is from an  
identified work location on a job site during work hours. The Union asserts that the  
collection and use of this information is contrary to the partiescollective agreement,  
arbitral jurisprudence, and the Personal Information Protection Act, S.B.C. 2003, c. 63  
(PIPA). KONE asserts that the collection and use of this information is reasonable  
both under arbitral and privacy law, and that the Grievance should be dismissed in its  
entirety.  
2
On July 2, 2021, the Union filed an application seeking an interim order that  
KONE disable the GPS function of IBRT 2.0 pending the determination of the merits of  
the Grievance or, if that was not possible, that KONE delay implementing IBRT 2.0 (the  
Interim Application). Through case management, and with the partiesconsent, KONE  
was given until August 6, 2021 to file its response to the Interim Application, and I  
committed to issuing a bottom-line decision by August 12, 2021. In the meantime,  
efforts to assist the parties in coming to a temporary agreement regarding the  
implementation of IBRT 2.0 were not successful. At the same time, the parties were  
also involved in proceedings before the BC Labour Relations Board (the Board), which  
I discuss further below.  
3
4
On August 12, 2021, I advised the parties that the Interim Application was  
dismissed. My reasons for doing so are included in this Award.  
Through the case management process, I ordered KONE to proceed first at the  
hearing on the merits, given the practical reality that it would hold most of the key  
evidence in this case. This ruling was made in furtherance of ensuring a fair and  
efficient hearing process.  
5
At the hearing, KONE called three witnesses: Chris Melanidis, Installation  
Manager; Lars (Thor) Froystad, a construction supervisor; and Michael Tominac, Vice-  
President of Human Resources in Canada. The Union also called three witnesses:  
Brad Mosdell, a construction foreman; John Hermanson, installation mechanic; and  
Mike Funk, Business Manager for the Union. Both Mr. Mosdell and Mr. Hermanson are  
employed by KONE and are members of the bargaining unit.  
6
By agreement, the parties provided final arguments via written submission, with  
the submission process closing on November 10, 2021.  
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II.  
FACTS AND EVIDENCE  
KONES OPERATIONS  
7
8
9
KONE is in the business of elevator and escalator installation, maintenance, and  
modernization. KONEs Canadian operations are part of a larger global organization.  
KONEs Canadian, US and Mexican operations are collectively grouped as KONE  
Americas, which is headquartered in Illinois. In referring to KONEin this decision, I am  
referring to KONEs Canada operations.  
KONEs business consists of three divisions: construction, modernization, and  
maintenance and service. The construction side includes the installation of new  
elevators or escalators in new buildings. Modernization involves replacing existing  
equipment with more up-to-date products. Maintenance involves servicing and repairing  
existing equipment that has already been installed.  
KONE is a member of the National Elevator and Escalator Association (NEEA),  
which is an employer bargaining association made up of four unionized elevator  
employers in Canada: KONE, Otis, TK (Thyssen Krupp) and Schindler. All four  
employers are signatories to collective agreements with the Union. KONE and the  
Union are signatories to two NEEA collective agreements applicable in BC: the NEEA  
Standard Construction Agreement (the Construction Agreement) and the NEEA  
Standard Maintenance and Service Agreement (the Maintenance Agreement). There  
is no dispute that the relevant provisions of both agreements, for purposes of this  
proceeding, are identical, and are set out below.  
10  
Maintenance mechanics work largely on an independent and mobile basis.  
Construction or field employees (i.e., mechanics and helpers) work on a relatively less  
mobile basis, but can have fluctuations in the location of their work. Construction  
employees report directly to the job site and finish their day at the job site. The evidence  
was that they may work on one or more job sites, which may be located over a large  
geographic range, and for varying periods of time. For example, Mr. Froystad, who has  
been a construction supervisor since 2019, testified that field employees may be on a  
job site for as little as four weeks or up to six months, depending on the nature, size,  
and stage of the project, and may also be shuffled around job sites as a result of those  
factors.  
11  
Construction employees report to exempt supervisors. Construction supervisors  
have a wide range of duties and responsibilities, including: safety; planning work and  
supervising crews on a number of job sites; dispatching and scheduling crews; dealing  
with any issues crews may have on a day-to-day basis; planning for and preparing new  
or upcoming job sites; communicating with and attending meetings with customers,  
general contractors, and other parties; and conducting administrative work. In particular,  
supervisors are responsible for overseeing employee attendance, and reviewing and  
approving time entries for payroll on a weekly basis.  
- 4 -  
12  
Supervisors are assigned to supervise job sites based on geographical area. Mr.  
Melanidis testified that KONE has nine construction supervisors in BC: six supervisors  
in the Greater Vancouver area (where there is the largest volume of business); one in  
Victoria, who is responsible for all of Vancouver Island; and two in Kelowna, who are  
responsible for the Interior region. A supervisors geographic area of responsibility may  
be quite dispersed. For example, Mr. Froystads evidence was that he was responsible  
for job sites spreading from Hope to North Vancouver.  
13  
In addition, the number of job sites that a construction supervisor is responsible  
for can vary from week to week, depending on job completion. For example, Mr.  
Froystad testified that he may be responsible for anywhere from three larger sites to up  
to nine smaller sites at a time. He testified that, at the time of the hearing, he was  
supervising seven active sites. The evidence was that, in general, construction  
supervisors may be responsible for approximately six to 12 active sites, and up to 20  
construction employees, at a time. Mr. Froystad testified he has had up to 26  
employees under his supervision at a time.  
14  
Mr. Melanidis testified that, at the time of the hearing, KONE had approximately  
37 active sites in the Lower Mainland. KONEs witnesses testified that, given the  
number of job sites and their wide geographic area of responsibility, in practice,  
supervisors cannot attend all of the job sites they are responsible for on a daily basis.  
For example, Mr. Froystad’s evidence was that he tries to visit each of his job sites one  
to three times per week, stating, I try to get to each site at least once a week and  
sometimes that’s all I can manage. Two is the bare minimum if I have a choice, and  
three is the aspiration. As a result, his evidence was that in a given week, if I’m lucky  
I’m spending six hours on a given site. Im not there 32, 34 hours of the week. Mr.  
Melanidis provided similar evidence regarding his experience during his time working as  
a construction supervisor at KONE.  
15  
Similarly, given the number of job sites and the distance between them, as well  
as the additional duties that supervisors have, Mr. Melanidis’ evidence was that KONE  
cannot constantly supervise each job site, nor was it financially feasible to operate with  
37 supervisors for 37 sites to ensure regular supervision. The evidence was that a  
supervisors annual income is $125,000 not including bonuses.  
16  
Construction supervisors report to one of two Installation Managers in BC: Mr.  
Melanidis, who is responsible for the Greater Vancouver area, and another manager,  
who is responsible for Vancouver Island, the Interior region, and other Western  
provinces. Mr. Melanidisevidence was there are six supervisors who report in to him,  
including Mr. Froystad, with approximately 105 field employees reporting through those  
supervisors. In turn, the Installation Managers report to the District Construction  
Manager for Canada West.  
17  
As Installation Manager, Mr. Melanidisresponsibilities include overseeing and  
supporting supervisors in his region, handling KONEs financial and safety operations,  
and bidding on new projects and communicating with the sales department. In that  
context, Mr. Melanidis gave evidence regarding the competitive challenges in the  
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elevator industry, which also includes non-unionized elevator employers. He testified  
that there are significant competitive pressures when KONE competes on bids for  
projects. In particular, his evidence was that the cost of additional supervisors translates  
directly into additional fees for clients, which would make KONE less competitive in the  
market.  
KONE’S EXISTING USE OF GPS TECHNOLOGY  
18  
Since approximately 2009, KONE has used the Safety Locator application  
(Safety Locator) for maintenance employees. Safety Locator is an application installed  
on their work mobile devices, and which utilizes GPS technology. Importantly, Safety  
Locator can determine and show the exact location of maintenance employees, in real-  
time, while they are on duty. Mr. Melanidis’ evidence was that Safety Locator provides a  
real-time “view of employees moving around during the day as they go from building to  
building, task to task”. It also has a map function on which a supervisor can see whether  
an employee is going directly from one job site to another, and also shows how much  
time an employee is at each site.  
19  
In or about 2013, the Union challenged KONE’s collection and use of GPS-based  
location information through the Safety Locator application under PIPA. In KONE, infra,  
the Office of the Privacy Commissioner (OIPC) dismissed the Union’s complaint, and  
found that KONE’s collection and use of location information through Safety Locator  
was reasonable and authorized under PIPA. There is no dispute that KONE has  
continued to use Safety Locator for maintenance employees since 2009.  
IBRT 1.0 AND KONES CONCERNS  
20  
Construction employees are provided with KONE-issued mobile phones or  
devices for work purposes (the “Devices”). The Devices are used for, among other  
things, task entry and task management, and time entry. The Devices also give  
employees access to KONE’s intranet and learning centre, which include training and  
reference materials, operations manuals, and troubleshooting resources.  
21  
IBRT 1.0, the predecessor to IBRT 2.0, was a web-based portal for time entry for  
construction employees. IBRT 1.0 also included functions for tracking or logging job  
progress and job task completion for project management purposes. Employees signed  
on to IBRT 1.0 on their Devices, entered their time worked, and updated task status.  
On the basis of the time entered by the employee, IBRT 1.0 generated time tickets for  
payroll purposes.  
22  
The evidence was that IBRT 1.0 relied virtually entirely on the information  
entered by the employee. The data KONE received from IBRT 1.0 did not provide any  
information regarding the location of employees during the work day. KONE could not  
verify from IBRT 1.0 data if the employee was in fact at the job site for the period of time  
for which he or she was claiming pay. In short, time entry in IBRT 1.0 was based on the  
honour system, and IBRT 1.0 did not provide KONE with the ability to verify accurate  
time entry.  
- 6 -  
23  
KONEs witnesses testified that KONE has had issues with proper attendance  
among its construction crews, particularly in Vancouver and the Lower Mainland. These  
include ongoing issues with employees arriving late, leaving work early, and taking  
extended lunch or coffee breaks. In this context, KONEs witnesses testified about the  
expectation and importance of getting 8 for 8. i.e., eight hours of work for eight hours  
of pay (as there is a 30-minute unpaid lunch break, a full work day involves being on  
site for 8.5 hours).  
24  
Mr. Melanidis has been employed with KONE in a supervisory or managerial  
capacity since approximately 2016. His evidence was that prior to the implementation of  
IBRT 2.0, KONE did not have effective tools for verifying that it was getting “8 for 8or  
that employees were not engaging in time theft or demonstrating poor attendance such  
as arriving late or leaving early. His evidence was that, other than having a supervisor  
continuously present at each job site, there was no consistent way to obtain this  
verification. In addition, Mr. Melanidis testified that poor attendance leads to delays in  
project completion, which in turn damages customer relations and profit margins. His  
evidence was that project delays caused by attendance issues absolutely is causing  
stress with our relationships with our clients, and our sales teams are not happy with  
us.  
25  
Mr. Froystad also testified that, in his experience, getting “8 for 8” from  
construction employees was a problem in Vancouver, due to issues with employees  
arriving late, leaving early, or taking extended breaks. He testified that he has had  
numerous conversations with field employees about the importance of providing eight  
hours’ work for eight hours’ pay. He testified about specific incidents over the past two  
years where he discovered field employees had arrived for work late, taken extended  
breaks, or left work early. His evidence was that he only learned of these incidents by  
happening to visit the job site at the right time, or because the general contractor on site  
made a complaint. For example, he gave evidence regarding a job site where the  
general contractor complained several times that the construction employees had left  
work early or had been taking extended breaks. Mr. Froystad also gave evidence of an  
instance where he visited one of his sites and found the entire crew had left work early.  
26  
Mr. Tominac has been employed by KONE in Human Resources for 20 years. In  
his evidence, Mr. Tominac reviewed several coaching and discipline letters issued to  
construction employees in the Lower Mainland in the past two years for reporting for  
work late, leaving work early, taking extended breaks, or relating to time theft. Mr.  
Tominac testified that, for many of those letters, he was aware of the circumstances  
through discussions with the supervisor, and that the supervisor only happened to learn  
of the incident by happenstance, having visited the site at the time in question, or from  
third party complaints. He testified that these letters were indicative of the difficulty in  
discovering specific incidents of time theft or poor attendance. He also testified that  
even if it was not a case of time theft, it is still problematic if an employee is not  
providing eight hours of work, due to the resulting delays in project completion,  
customer dissatisfaction, additional costs, and reputational damage. In particular, Mr.  
Tominac testified as follows:  
- 7 -  
Before IBRT 1.0, we used paper time tickets. With paper tickets  
and with IBRT 1.0, were blind, we don’t know what is going on on  
our worksites unless we are there, and we can’t be there. When we  
look at our business, we get lucky when a supervisor shows up at  
7:00 am and finds out no one is there, or shows up at 3:30 pm and  
finds out no one is there. Those are the moments we are fortunate  
to find out we are not getting eight hourswork or we get  
fortunate when a customer calls and says your guys are not here  
and left early, or when a mechanic is honest and tells us he is late  
or left early…  
If [employees] are not putting in eight hours of work - our customer  
needs the elevator and needs it on time. They cant turn over the  
building until we finish our job. Sometimes other trades cant finish  
their jobs. This costs us in dollars and reputation. Being late,  
missing work, all of that contributes to the concern from KONEs  
point of view.  
27  
In the last two years, KONE issued at least 38 coaching or discipline letters to  
construction employees in the Lower Mainland regarding attendance issues, some of  
which related to incidents involving the same employee on more than one occasion,  
more than one employee, or even the entire crew at a job site. KONEs position was  
that because of the difficulty in discovering these issues, the letters were not reflective  
of the true magnitude of the problem.  
28  
29  
In this regard, in cross-examination, Mr. Mosdell, who testified for the Union and  
is a walking foreman, agreed that he has attended at job sites to assist with work, to find  
that there were no field employees present during work hours.  
IBRT 2.0: INTRODUCTION AND ROLL-OUT  
In or about 2019, KONE was advised by KONE Americas that the IBRT 2.0  
application would be implemented in Canada for construction and modernization  
employees. Due to administrative issues and the COVID-19 pandemic, KONE ultimately  
delayed the rollout of IBRT 2.0 until March 2021.  
30  
31  
IBRT 2.0 is an application run on a Device and, among other things, is used for  
time entry and task entry. IBRT 2.0 had already been implemented in the United States,  
though the American version had some key differences, which are discussed below.  
IBRT 2.0 involves the setting of a geofence, or virtual construction site fence,  
around the elevator to be installed at a job site. Standing in front of the hoistway, which  
is where the elevator is to be installed, a supervisor pingsthe location on the  
application and a geofence is set, with a radius of 0.3 miles from the hoistway (the  
Perimeter). The hoistway is at the centre of the geofence.  
32  
IBRT 2.0 collects information regarding the distance of the employees Device  
from the Perimeter, and the time associated with that distance (the Proximity  
- 8 -  
Information). The Proximity Information essentially shows whether or not an employee  
was at or near the job site, within 0.3 miles, for the time that he or she claimed to be  
working. On a job site involving many units to be installed, there may be multiple  
geofences.  
33  
34  
In addition to Proximity Information, IBRT 2.0 collects and uses information about  
whether the Device is active, and the battery life of the Device (collectively, the IBRT  
Information).  
IBRT 2.0 collects the Proximity Information approximately every three minutes.  
However, the Proximity Information cannot be viewed by KONE until 24 hours later, and  
only once the employee has claimed pay for the time worked based on his or her time  
entry in IBRT 2.0. As a result, it is not possible to locate or trackan employee in real-  
time through IBRT 2.0. Further, KONEs witnesses testified that the Proximity  
Information only shows whether the employee was within the geofence at the job site  
during work hours; once the employee leaves the geofence, the Proximity Information  
shows the distance of the Device from the geofence, but does not show the employee’s  
location.  
35  
36  
Mr. Melanidisevidence was that management does not continuously monitor the  
IBRT Information. I will return to this point below.  
Mr. Tominac testified that these aspects of IBRT 2.0 are distinct from the  
American version, which does collect real-time location information. Accordingly, the  
American version would allow a supervisor or manager to locate an employee in real-  
time, not only within, but also outside of, the geofence. Mr. Tominacs evidence was that  
when he learned about IBRT 2.0, he and other Canadian colleagues expressed  
concerns about the privacy implications of implementing the American version in  
Canada. Specifically, his evidence was that KONE did not need to know where the  
employee was outside of the geofence, or even the employees exact location within the  
geofence. His evidence was that “all we need to know is whether our mechanic is inside  
the geofence [during work hours]. If he is, that’s great. If he is outside [during work  
hours], we need to ask some questions”. Mr. Tominac testified that, accordingly, KONE  
requested that IBRT 2.0 be modified for Canadian usage. He testified this was not  
easy to doand required some heavy-duty collaboration and discussions.  
37  
In addition, the evidence was that access to IBRT 2.0 is tailored among  
management. For example, Mr. Tominac testified that he cannot access IBRT  
Information. Mr. Melanidis testified that he can only access IBRT Information for  
Vancouver employees (i.e., employees who report up to him through supervisors), and  
that supervisors could only access information for employees who report to them.  
38  
I turn now to the evidence regarding how IBRT 2.0 works in practice. Employees  
are required to carry their Devices with them during work time. They are instructed to  
keep location services onon the Devices during working hours. The following notice  
pops up on the Device, which employees are instructed to accept:  
- 9 -  
KONE Inc. owns this device and collects and uses information from  
this device, including geolocation data, to monitor device  
performance and KONE internal operations and administration.  
KONE will only use location data collected during scheduled  
working hours.  
39  
40  
41  
Employees are also required to review and accept the Installation Back  
Reporting Tool Policy (discussed below). In addition, they are told to allow the HUB”  
application to use location services on the Device. I note there was little evidence, if  
any, on the nature of the HUB application or the information it collects. Mr. Melanidis  
testified that to his knowledge, HUB did not collect information beyond what IBRT 2.0  
collects.  
Upon arriving at the job site, the employee locates the elevator on which he or  
she will be working, which has a unique network number in IBRT 2.0. The employee  
charges work time against that network, which is then billed to the appropriate client.  
Employees are instructed to report their time twice a day, i.e., before lunch and before  
leaving for the end of the work day. The evidence was that employees are provided 10  
minutes of work time to cover time needed for this reporting.  
Because the lunch break is unpaid, employees are instructed to turn the IBRT  
2.0 application off for that break, and then turn it back on upon returning to work. They  
are also instructed to turn the Device off during non-working hours. Mr. Melanidis  
testified that KONE does not require field employees to take their Devices home with  
them, and if the employee did not want to take the Device home, there are secured job  
boxes on the job site where Devices can be safely stored.  
42  
43  
44  
IBRT 2.0 also allows employees to record their tasks and expenses for specific  
projects, but in an enhanced way as compared to IBRT 1.0. For example, IBRT 2.0  
allows employees to provide additional details for task progress and completion.  
KONEs witnesses provided evidence as to how KONE uses the IBRT  
Information. In particular, IBRT 2.0 has two new functions that were not available in  
IBRT 1.0: a roll callfunction; and installation field proximity data and reports.  
The roll call function identifies, in real time, employees who: are actively using  
the application at the time the roll call function is accessed (shown in green); employees  
who have recently used the application (within 16 minutes to nine hours ago) (in yellow);  
and those who have not used it for approximately 24 hours or more (in red). Mr.  
Melanidis’ evidence was that there could be many non-culpable reasons for an  
employee to be in yellow or red, such as being on vacation, being away sick, or being in  
a location where there is no signal or the device is not functioning. He testified that,  
presently, the roll call function is accessed daily; however, as employee compliance with  
using IBRT 2.0 improves, the roll call function would not need to be monitored on a daily  
basis.  
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45  
46  
Mr. Froystad’s evidence was that he generally accesses the roll call function on a  
daily basis, and does so for two reasons: (1) to ensure employees have their Devices  
on and are using the IBRT 2.0 application; and (2) if an employee has not been in  
contact and the Device is not emitting a signal, to ensure the employee is safe.  
IBRT 2.0 also provides information regarding an employee’s installation field  
proximity, or “IFP”. A proximity report shows the IFP ratio for each employee, in  
percentage form. Mr. Melanidis testified that the IFP ratio shows how much time the  
employee was proximate to a network or location, as a percentage of the total time the  
employee has charged to that specific network or location: the higher the percentage,  
the greater amount of time the employee was proximate to the network or location on  
which they are claiming time. In other words, the IFP information allows KONE to verify  
the employees reported hours of work against their distance from the Perimeter, using  
the Proximity Information to confirm what percentage of time claimed working was spent  
within the Perimeter. The IFP information can also be displayed in graphical form. The  
graph shows when the employees Device is within and outside of the geofence during  
work hours, the distance from the geofence, as well as the battery level of the Device  
throughout working hours.  
47  
The evidence was that, unlike the roll call function, the IFP validity report  
information is not available on a real-time basis: it only becomes available 24 hours  
later, once the employee has entered his time, and for the period the employee is  
claiming pay. Mr. Froystad testified that he accesses the IFP information for his  
employees once per week, when he reviews and approves payroll.  
48  
In his evidence, Mr. Melanidis went through documentary examples of where an  
employees IFP ratio was inconsistent with the number of hours of pay claimed by that  
employee or the expected hours of work. Mr. Melanidis testified that, on the basis of this  
information, and once the employee submitted a request for payment for that date, a  
supervisor could then have a conversation with the employee about the inconsistency to  
determine what happened on the date in question. He testified that there could be valid  
reasons for the discrepancy, for example, if the employee was asked to pick up supplies  
on the way to or from the job site. Accordingly, his evidence was that the IFP ratio would  
only be the starting point for a discussion with the employee.  
49  
Similarly, all of the Employer’s witnesses testified that the IBRT Information gives  
KONE an indication of potentially whether it is getting “8 for 8” from its construction  
employees. Each of them testified that such information would not, in and of itself, be  
utilized to impose discipline. Rather, it would serve as a starting point for discussion with  
the employee regarding his or her time keeping for the day in question, and then allow  
for further investigation.  
50  
KONEs witnesses also testified that the IBRT Information can be used to ensure  
the accuracy of client billing, by verifying that work time is being charged to the correct  
network number. In addition, the IBRT Information can assist with addressing client  
complaints. For example, if a client alleged that an employee or crew was not present at  
the worksite, the IBRT Information could be used to disprove the allegation.  
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51  
Mr. Tominac gave evidence regarding the impact he believed IBRT 2.0 would  
have on the culture of time reporting on the construction side of KONEs business,  
stating:  
We have used GPS since 2009, and will continue to do so with  
IBRT 2.0. It’s a great tool to sit down with the mechanic, and say  
look what I see [on IBRT 2.0], can you provide me an explanation.  
When we have done that with Safety Locator, it is amazing how  
quickly employee behaviour improves. So once the employee sits  
down and sees what we see, we hope it will improve some  
negative behaviours. That is the big win here. With Safety Locator,  
we do not terminate employees solely based on that data. When  
we find that data, we put it in front of the employee and ask for an  
explanation. We will do same with IBRT 2.0, explain to us why you  
were you outside the geofence, why were you not on time.  
Whatever it is, it will be good starting point, and I believe when  
employees see this, it will correct a bad habit that may be there.  
52  
KONEs witnesses also gave evidence regarding the viability of alternatives to  
IBRT 2.0. For example, Mr. Melanidis testified about the financial impracticality of  
having a supervisor assigned to each job site to supervise employees for the work day.  
His evidence was that having a supervisor at each job site would represent a 600%  
increase in the number of supervisors, and that he could not see how the business  
could remain viable in such a case. Similarly, Mr. Tominac testified that cost structures  
are based on materials costs and labour costs, which already factor in the cost of a  
supervisor: as a result, increasing the number of supervisors directly results in an  
increase in the cost of KONE’s products. In addition to the financial implications, Mr.  
Froystad testified that it has taken up to one year to properly train a supervisor to be  
able to be assigned responsibility for a construction crew. Both Mr. Melanidis and Mr.  
Tominac testified that KONE had recently added, or was in the process of hiring, one  
additional supervisor in Vancouver.  
53  
Mr. Tominac testified that having a mechanic in charge or foreman on each job  
site is also not a reasonable alternative to IBRT 2.0. The evidence was that a mechanic  
in charge is a member of the bargaining unit, and does not exercise any management  
functions such as hiring, firing or discipline. Further, Mr. Tominac’s evidence was that,  
as mechanics in charge are members of the bargaining unit, it was unrealistic to expect  
them to report on attendance problems of their fellow bargaining unit members. In  
addition, pursuant to the Construction Agreement, a mechanic in charge is only required  
on sites that have four or more employees. Mr. Melanidis’ evidence was that less than  
25% of the job sites in his portfolio would have four or more employees.  
54  
I turn now to a summary of the rollout of and training on IBRT 2.0. In an  
employee newsletter dated March 30, 2021, KONE advised employees that IBRT 1.0  
would be shut down effective April 19, 2021, and that all time tickets would need to be  
generated in IBRT 2.0. It also advised that training on IBRT 2.0 must be completed by  
April 5, 2021. The implementation of IBRT 2.0 was ultimately delayed until July 15,  
- 12 -  
2021. The evidence was that KONEs information technology department advised that  
IBRT 1.0 had to be shut down by that time due to cyber security risks.  
55  
Mr. Melanidis testified that training on IBRT 2.0 had begun prior to the issuance  
of the March 30, 2021 newsletter, including a review of the application with employees  
in 2019, as well as mandatory training modules that were to be completed by  
employees. The training module consisted of instructional materials followed by a quiz.  
In particular, the training module provided instructions regarding: the reporting of time  
twice a day; turning off Devices during lunch breaks and non-work hours; the option of  
storing the Device securely at the jobsite at the end of the work day if the employee did  
not want to take it home; and the pop-up notice on the Device, set out above, regarding  
the collection and use of information from the Device, including geolocation data for the  
stated purposes. Mr. Melanidis testified that by June 1, 2021, all construction and  
modernization field employees had completed the training. In addition to the training,  
employees could access resource materials for IBRT 2.0 on the Devices if they needed  
reference, including a field user guide and troubleshooting guide, as well as access to  
the applicable policies (discussed below).  
56  
The Union’s witnesses gave evidence regarding their personal timekeeping  
practices and their subjective views of IBRT 2.0. They testified that they found the act of  
being monitored under IBRT 2.0 to be demoralizing, and that they felt they were not  
trusted. For example, Mr. Mosdell gave evidence that his location was being “pinged” on  
his Device even after work hours and on the way home from work, and speculated that  
this was occurring through IBRT 2.0. However, there was no evidence to indicate that  
that location tracking was being done by IBRT 2.0. Further, none of the documentary  
evidence that explained the operation of IBRT 2.0 suggested that the application  
operated in this manner.  
EVENTS LEADING TO THE GRIEVANCE  
57  
In a letter dated March 10, 2021, the Union asked KONE to disclose the  
purposes for collecting geo-fenceinformation about employees in IBRT 2.0, as well as  
how KONE intended to monitor, collect and use the information.  
In a letter to Union counsel dated April 23, 2021 (the April 23 Letter), KONE counsel  
set out the information that can be collected from IBRT 2.0, and the purposes for  
collecting it (the IBRT Purposes). The April 23 Letter states in part as follows:  
KONE may collect the following information from employees in  
connection with the IBRT 2.0 system:  
The proximity of a KONE employees mobile device to  
specified work location with a perimeter of 0.3 [miles], within  
a specified margin of error;  
The time of day associated with the location information  
collected;  
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Whether the employees mobile device is active or inactive;  
and  
The battery level of the employees mobile device.  
The purposes for which this information may be collected are  
consistent with the establishment, management and/or termination  
of employment, and include:  
Protection of people, assets and property;  
Facilitating compliance with KONEs health and safety  
obligations;  
Facilitating the management and tracking of employee  
attendance,  
including  
administering  
attendance  
requirements and payroll, and identifying and investigating  
inaccurate timekeeping;  
Planning and operational improvement purposes, including  
but not limited to safety, operational efficiency and  
productivity;  
Supporting operational safety, by providing the company  
with the ability to locate members of its mobile work force  
during working periods;  
Facilitating investigations, including but not limited to  
investigations into non-compliance with company policies  
and requirements, and safety investigations;  
Facilitating management, coaching, training or skill  
improvement of employees;  
Complying with contractual or statutory reporting  
obligations;  
Defending claims against KONE; and  
Other purposes required or authorized by law.  
58  
59  
In the April 23 Letter, KONE also advised that, in addition to its existing  
Employee Privacy Policy, it would be implementing a GPS Systems Policy, and  
attached a copy for the Union’s review. These policies are reviewed below.  
On May 4, 2021, the Union initiated the Grievance, as against the employers  
collection/use of personal information and the employer’s surveillance of bargaining unit  
employees via the IBRT 2.0 system as described by the employer in their legal  
counsel’s letter of April 23, 2021. The Union asked KONE to cease and desist from  
using IBRT 2.0 to collect/use geo-location information from bargaining unit employees.  
- 14 -  
On May 10, 2021, KONE counsel advised that the Grievance was denied, on the basis  
that the use of IBRT 2.0 to manage employee attendance and investigate inaccurate  
time reporting was a reasonable exercise of management rights. I was then appointed  
by the parties to hear the Grievance.  
THE ILLEGAL STRIKE  
60  
61  
As noted above, the Union filed the Interim Application on July 2, 2021. While the  
submissions process on the Interim Application remained underway, several other  
events occurred.  
Specifically, on July 14, 2021, i.e., one day prior to the scheduled shutdown of  
IBRT 1.0, the Union held a meeting with its members where it instructed them to not use  
IBRT 2.0 for time entry. When IBRT 1.0 was disabled the next day, many employees  
began submitting time entries not through IBRT 2.0, but through email or notes.  
62  
63  
On July 16, 2021, KONE provided a notice to all construction employees  
directing them to use IBRT 2.0 to enter their time and track job completion. KONE  
provided a similar instruction again on or about July 19, 2021.  
Mr. Tominac testified that, as a result of time entries not being entered through  
IBRT 2.0, KONE expended significant management resources to process them  
manually into payroll, but were able to have most employees paid by the end of the  
month.  
64  
As noted, I had committed to providing the parties with a bottom-line decision on  
the Interim Application by August 12, 2021. At the same time, the parties were engaged  
in various proceedings before the Board, including an application filed by KONE for a  
declaration that the concerted refusal to enter time through IBRT 2.0 constituted an  
illegal strike. On August 6, 2021, the Board granted an order to that effect, and found  
that the refusal to use IBRT 2.0 was an illegal strike under the Labour Relations Code  
(the Board Order).  
65  
The Board Order included the following temporary measure, to be in place from  
the date of the Board Order to the receipt of my bottom-line decision on the Interim  
Application (i.e., for a maximum of six days):  
The Employees are to open IBRT 2.0 for the length of time required  
to enter their time and job data into IBRT 2.0 before leaving, and  
while physically located on, each and every Employer job site on  
which they work each day.  
The order [above] is without precedentto any subsequent arbitral  
or Board decision and will expire upon the partiesreceipt of the  
Kandola decision [on the Interim Application] on August 12, 2021.  
- 15 -  
66  
As noted below, the Union argues that the temporary process set out in the  
Board Order (which it calls the on/off method) is a less intrusive alternative to the full  
usage of IBRT 2.0. Mr. Tominac testified that the temporary process set out in the  
Board Order does not achieve the purposes of IBRT 2.0. Specifically, his evidence was  
that IBRT 2.0 was designed not simply for time keeping, but for other functions as well,  
one of which is to confirm that employees are working within the geofence during work  
hours. By turning the application on and off, the only information available is that the  
employee was inside or outside of the geofence at the moment in time that it was turned  
on: for the remainder of the work day, there would be no information as to whether the  
employee was in the geofence.  
III.  
COLLECTIVE AGREEMENT PROVISIONS AND KONE POLICIES  
67  
68  
Construction employees are governed by the Construction Agreement, whereas  
maintenance and modernization employees are governed by the Maintenance  
Agreement. As noted, the material provisions of these agreements are identical for the  
purposes of this dispute.  
Article 2 of the Construction Agreement is a recognition clause, the relevant parts  
of which state as follows:  
Par. 2 The Union recognizes that it is the responsibility of the  
Employer, in the interest of the purchaser, the Employer, and their  
Employees, to maintain the highest degree of operating efficiency  
and to continue technical development to obtain better quality,  
reliability and the cost of its product, provided that this provision is  
not intended to affect the work jurisdiction…  
Par. 3 Without limiting the generality of the foregoing, and subject  
to the other provisions of this Agreement, the Employer shall have  
the right to:  
(a) Select personnel, hire, assign work or duties, transfer, layoff  
and recall Employees,  
(b) Discipline or discharge for just cause,  
(c) Establish and enforce reasonable rules of conduct to be  
observed by Employees, (emphasis added)  
69  
70  
Article 22(5) provides for two 10-minute breaks during the work day, which are  
paid. There is also a thirty-minute unpaid lunch break.  
Turning to the relevant policies, there are four KONE policies applicable to this  
dispute: the Employee Privacy Policy; the Mobile Device Policy; the GPS Systems  
Policy; and the Installation Back Reporting Tool Policy.  
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71  
The Employee Privacy Policy was introduced in or around 2010, to coincide with  
the introduction of Safety Locator, and has been in place since. The Employee Privacy  
Policy states, in part, as follows:  
OUR COMMITMENT TO PRIVACY  
KONE Inc. (KONE) is committed to maintaining the security,  
confidentiality and privacy of employeespersonal information.  
KONE respects employee privacy and strives to be an open and  
accessible organization. We have developed this Privacy Policy to  
reflect our ongoing commitment to our employees and in  
compliance with the Personal Information Protection Act (PIPA)  
which governs the collection, use and disclosure of personal  
information.  
SCOPE OF POLICY  
This Policy applies to KONE and its collection, use and disclosure  
of personal information of employees. …  
PURPOSES  
When KONE collects personal information about employees we will  
explain why we are doing so.  
KONE collects personal information for purposes authorized or  
required by PIPA or other law. We collect personal information  
about our employees:  
a) to make decisions about hiring (including reference checks,  
driving abstracts and medical evaluation), promotions, transfer,  
demotions, rewards/recognition and remuneration or about the  
ending of employment;  
b) to respond to medical emergencies;  
c) to provide and administer . benefits…  
d) to protect customers, employees, and KONE from theft, fraud  
and similar risks;  
e) to process and administer payroll;  
f) to determine, administer and document training, educational and  
licensing requirements;  
g) to monitor, document, assess and address employee  
performance by personal supervision and other means, including  
electronic data devices;  
h) to maintain employee/employer communication;  
i) to process expense claims;  
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j) to verify information provided by our employees or about our  
employees which is necessary to manage and administer the  
employment relationship;  
k) to administer and document vacation leaves, sick days/leaves or  
other leaves or absences from work; and  
l) to monitor, document, assess and address employee adherence  
to policies (sch as the Internet/Email Usage Policy) and to address  
other security and internal control matters (including video  
surveillance in high risk areas).  
KONEs collection, use and disclosure of the above personal  
information is only done to the extent reasonable and necessary to  
manage the employee-employer relationship and therefore  
employee consent is not required. …  
72  
73  
The Employee Privacy Policy directs questions to KONEs Privacy Officer, who is  
Mr. Tominac, and provides his contact information.  
The Mobile Device Policy, which is dated 2019, states that it applies to KONE  
USA and Canada employees who are issued a mobile device. Among other things, the  
Mobile Device Policy provides that the Devices are to be used for work purposes, and  
that the Devices and any data stored on them are KONEs property. In addition, it  
states:  
There should be no expectation of privacy whenever an employee  
makes use of a KONE-provided mobile device. All messaging,  
voice mail, photographs/videos, internet history and any other  
saved information on a company-provided mobile device shall be  
deemed visible and accessible by the KONE USA and Canada  
management team…  
74  
In or about 2019, KONE introduced the Installation Back Reporting Tool Policy  
(IBRT Policy) and in or about 2021, the GPS Systems Policy, in anticipation of the  
launch of IBRT 2.0. The IBRT Policy states, in part, as follows:  
Purpose  
This Policy outlines the responsibilities and expectation for  
Installation and Modernization employees in KONE U.S, Canada,  
and Mexico for the proper utilization of the Installation Back  
Reporting Tool (IBRT).  
Scope  
The IBRT shall be used for reporting time, business expenses,  
confirming employee location on KONE jobsites during Working  
Hours, and task completion on all NEB [new elevator business] and  
MOD [modernization] installations.  
- 18 -  
Procedures  
Employees will utilize the IBRT to submit Time Worked on the  
jobsite to ensure accurate payroll reporting and employee location  
during Working Hours. Total Time Worked shall be submitted for  
each assigned work day.  
Time Worked must be recorded daily to accurately reflect all  
compensable hours. Employees are required to report tasks twice  
daily, once just before lunch and a second time just prior to  
departing the jobsite at the completion of Time Worked.  
It is the responsibility of the employee to review and certify that the  
time recorded in the IBRT is accurate and submitted to his/her  
supervisor for approval. The supervisor is responsible for review,  
approval and submission to Payroll, as defined in the appropriate  
processes.  
Responsibilities  
The following table outlines the responsibilities for compliance with  
this policy:  
Responsible  
Party  
Responsibility  
Employee  
Be committed to and comply with  
KONE time reporting policies and  
procedures;  
Keep the IBRT turned on, always  
charged and in their possession  
during Working Hours; …  
Employees will turn the IBRT off  
during their unpaid lunch period and  
back on upon completion of their  
unpaid lunch period;  
Participate in assigned training  
sessions to become competent in  
the execution of the time reporting  
policies and processes on the IBRT;  
and  
Review and ensure compliance with  
the KONE Mobile Device Policy.  
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Definitions  
Installation Back Reporting Tool: KONE device issued to  
Installation and Modernization employees.  
Time Worked/Working Hours: Time Worked/Working Hours are all  
hours that hourly employees perform work for KONE in accordance  
with the collective bargaining agreement for which they receive  
payment.  
Consequences for Non-Conformance  
All abuses or violations under this policy and/or associated laws or  
regulations may result in disciplinary actions in accordance with  
their collective bargaining agreement.  
Each IBRT user releases KONE, its officers, employees, and  
agents, from any and all claims arising in any way from the content  
or the collection of the IBRT data. …  
75  
The GPS Systems Policy provides, in part, as follows:  
Purpose  
KONE Inc. (“KONE”) is committed to protecting personal  
information of its employees, contractors and third parties in  
accordance with applicable law. KONE utilizes Global Positioning  
Systems (“GPS”) to perform location-based monitoring, in  
connection with specified applications in its corporate issued  
mobile technology (including cellular phones and tablets). These  
systems include KONE’s Safety Locator tool and Installation Back  
Reporting Tool (collectively, the “GPS Systems”).  
The purpose of this policy is to outline the practices and  
procedures that apply to KONE’s collection, use and disclosure of  
employee personal information in connection with the GPS  
Systems. For more information about KONE’s procedures and  
commitments with respect to employee personal information  
generally, please refer to our Employee Privacy Policy.  
APPLICATION AND SCOPE  
This policy applies to all KONE employees, contractors and agents,  
and to all GPS Systems employed by the company.  
PURPOSE OF THE GPS SYSTEMS  
KONE may use its GPS Systems for the following, non-limited  
purposes:  
To protect people, assets and property;  
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To facilitate compliance with KONE’s health and safety  
obligations;  
To facilitate the management and tracking of employee  
attendance,  
including  
administering  
attendance  
requirements and payroll, and identifying and investigating  
inaccurate timekeeping;  
For planning and operational improvement purposes,  
including but not limited to, safety, operational efficiency  
and productivity;  
To support operational safety, by providing the company  
with the ability to locate members of its mobile work force  
during working periods;  
To facilitate investigations, including but not limited to  
investigations into non-compliance with company policies  
and requirements, and safety investigations;  
To facilitate management, coaching, training or skill  
improvement of employees;  
To comply with contractual or statutory reporting  
obligations;  
To defend claims against KONE; and  
Other purposes required or authorized by law.  
INFORMATION COLLECTION  
KONE’s GPS Systems may collect some or all of the following  
information relating to employees’ geographic location and mobile  
devices:  
The location of a KONE employee’s mobile device at a  
specific time, within a specified margin of error;  
The proximity of a KONE employee’s mobile device to  
specified work location with a perimeter of 0.3 [miles], within  
a specified margin of error;  
The time of day associated with the location information  
collected;  
Whether the employee’s mobile device is active or inactive;  
and  
The battery level of the employee’s mobile device.  
KONE’s GPS systems do not collect continuous geographic  
location for employee mobile devices, or track locations or  
movements in real time.  
USE AND DISCLOSURE  
KONE treats information collected using its GPS Systems with a  
high degree of confidentiality. Such information is only used or  
disclosed for the purposes identified in this policy, except as  
required or authorized by law. In the event that KONE becomes  
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aware, through examination of information collected through the  
GPS Systems that an individual has engaged in behaviour that is  
prohibited in the workplace, the individual may be subject to  
disciplinary action up to and including termination of employment.  
RETENTION  
Information collected through GPS Systems will only be retained  
until the purposes set out in this policy have been fulfilled, except  
as required or authorized by applicable law. …  
76  
The GPS Systems Policy directs any questions to Mr. Tominac, and provides his  
contact information. As noted above, KONE provided a draft of the GPS Systems Policy  
to the Union with the April 23 Letter. It also emailed the GPS Systems Policy to  
employees on July 19, 2021.  
IV.  
POSITIONS OF THE PARTIES  
77  
78  
79  
The parties provided very extensive written submissions and briefs of authorities.  
I provide a non-exhaustive summary of some of their key arguments below.  
THE EMPLOYER  
KONE submits that both under the arbitral jurisprudence and under PIPA, the  
standard upon which its actions must be assessed is reasonableness, calculated  
through a balancing of rights and interests. It says it has met this standard in both  
contexts.  
With respect to the analysis under PIPA, KONE submits that the IBRT  
Information is employee personal informationas defined in section 1 of the statute.  
KONE relies on the OIPCs decision in Schindler Elevator Corp., Order P-12-01  
(Schindler) as setting out the proper analysis for interpreting and applying the  
employee personal information provisions of PIPA. It submits that Schindler has been  
applied in numerous OIPC decisions and arbitration awards relating to the collection,  
use or disclosure of employee personal information. In particular, it relies on the  
decision in KONE Inc., Order P13-01 (KONE), which addressed the Unions challenge  
to Safety Locator, and in which the adjudicator found that KONEs collection and use of  
GPS-derived location information was reasonable and authorized under PIPA. KONE  
submits that decision is determinative as it involves the same parties, and similar  
technology for similar purposes. KONE says it has tailored IBRT 2.0 to be even less  
privacy intrusive than Safety Locator, by collecting and using the Proximity Information  
instead of an employees exact location.  
80  
KONE submits that its collection and use of IBRT Information is limited to an  
employees working hours, which significantly diminishes the sensitivity of the  
information. By insisting on changes to the American version of IBRT 2.0, KONE has  
tailored its collection and use of employee personal information to collect and use only  
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that which is reasonably required to achieve the IBRT Purposes. In addition, KONE  
says there are number of other safeguards in IBRT 2.0 that limit the sensitivity, amount  
and detail of information collected.  
81  
82  
Second, KONE says that IBRT 2.0 is likely to be effective in achieving the  
purposes of, among other things, verifying employee attendance, ensuring accurate  
timekeeping and customer invoicing, and increasing operational safety and efficiency.  
Third, KONE asserts the manner of collecting and using the IBRT Information  
through IBRT 2.0 was reasonable. It also says there was ample training and notification  
for employees and to the Union, supported through the implementation of the GPS  
Systems Policy to provide greatly clarity.  
83  
Fourth, KONE says that while it is not required to do so, it has demonstrated an  
existing problem with construction employee attendance and performance and, in that  
context, returning to IBRT 1.0’s self reporting system or changing IBRT 2.0 to a  
modified on/off system, as suggested by the Union, are not reasonable alternatives.  
Similarly, it says hiring more supervisors would be no less privacy-intrusive and would  
also be unreasonable given the impact on KONEs competitiveness. KONE submits  
there are no other less intrusive alternatives that would reasonably meet its legitimate  
objectives.  
84  
85  
Last, KONE asserts that, from the perspective of a reasonable person, the  
collection and use of IBRT Information does not cause offence to employee dignity.  
With respect to the arbitral jurisprudence, KONE submits that, pursuant to its  
management rights, it is entitled to implement policies and procedures to verify  
employee attendance, ensure accurate timekeeping and customer invoicing, and  
increase operational safety and efficiency. This right is subject only to the provisions of  
the Construction Agreement (and the identical provisions of the Maintenance  
Agreement for affected modernization employees), and any applicable legislation. For  
reasons already stated, it says the applicable requirements of PIPA are satisfied.  
86  
In terms of the analysis set out in KVP Co. Ltd, [1965] O.L.A.A. No. 2 (KVP) for  
assessing unilaterally implemented workplace rules or policies, KONE says the GPS  
Systems Policy and the implementation of IBRT 2.0 are consistent with its broad  
management rights under Article 2(3) of the Construction Agreement, and none of the  
provisions of the Agreement restrict KONE from implementing IBRT 2.0.  
87  
KONE also submits IBRT 2.0 is a reasonable exercise of its management rights.  
It says the most analogous cases are those dealing with an employer’s use of overt  
surveillance. KONE says the arbitral jurisprudence distinguishes between overt and  
covert surveillance. For overt surveillance, the applicable test is whether the employer  
has exercised its management rights reasonably; in that context, KONE says an  
employer is not required to prove a substantial problem in the workplace: e.g. Kadant  
Carmanah Design v. IAMAW, District 250 (Video Surveillance Grievance), [2015]  
B.C.C.A.A.A. No. 111 (Lanyon) (Kadant), followed in subsequent arbitration awards.  
- 23 -  
88  
89  
Specifically, KONE submits that: it adopted IBRT 2.0 for the bona fide IBRT  
Purposes; there is a direct link or nexus between the IBRT Purposes and IBRT 2.0;  
IBRT 2.0 has been implemented in a reasonable manner; and there are no reasonable  
alternatives capable of achieving the same legitimate objectives.  
KONE submits that, while the factors articulated for PIPA and arbitral law are not  
exactly the same, both relate to assessing the reasonableness of the employers  
conduct in all the circumstances. It says that, under either analysis, the result is the  
same, and that its collection and use of IBRT Information through IBRT 2.0 is  
reasonable. KONE submits it has the right to know whether its employees are at work  
for the time they say they worked and claim pay. It says employees should have no  
reasonable expectation of privacy over how close they are to the job site during the  
hours for which they are claiming pay. KONE submits that the Unions approach to this  
dispute, including making misleading statements about the nature of IBRT 2.0 to  
bargaining unit employees, has complicated matters, culminating in an illegal strike.  
THE UNION  
90  
The Union submits that KONE has not demonstrated it has a strong interest in  
geo-surveillancebecause it has failed to demonstrate that it has a problem against  
which geofencing would be effective. The Union says KONE has only a speculative  
interest, which is not proportionate to the privacy violation, offence to dignity, and  
breach of trust which has resulted from the unilateral imposition of IBRT 2.0. In this  
regard, the Union distinguishes IBRT 2.0 from Safety Locator, which it says also has a  
safety benefit and is not exclusively aimed at catching employees in an act of  
misconductor policingattendance.  
91  
The Union says that monitoring through IBRT 2.0 is indiscriminate and  
continuous”– the application pings geographic information every three minutes all day,  
every day for the duration of the employees working life. In the Unions submission, in  
order to collect the Proximity Information, IBRT 2.0 mustcollect location information  
about the employee, i.e., information as to the employees geographic location via GPS.  
It also notes the wording of the screen prompts on the application itself, which refer to  
the collection of employee location information in a continuous manner, as well as the  
roll call function. In this context, the Union describes the collection and use of IBRT  
Information as being continuous.  
92  
In the Unions submission, KONE has and continues to put a spin on the actual  
operation of IBRT 2.0””, and has been obscure about the nature of the information  
collected. It also says none of the Employers witnesses were clear about who has  
access to the information collected under IBRT 2.0 or where it is stored. The Union also  
says that KONE has introduced superficial privacy policies. It argues that KONE did not  
call any evidence regarding: who has access to the IBRT Information; the place or  
jurisdiction of storage of the Information; security against unauthorized access; retention  
and destruction of the Information; and the HUB application and its functionality. The  
Union submits that an inference should be drawn that location information is  
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continuously generated by IBRT 2.0, is stored indefinitely outside Canada, and is  
accessible by unknown persons.  
93  
94  
The Union says that KONE has failed to demonstrate a substantive problem with  
employee attendance and time theft. In any event, it says IBRT 2.0 would not be  
effective in addressing purported problems with employee attendance, and could only  
assist with ascertaining time theft.  
In the Unions submission, KONE also failed to discuss or consider alternatives  
to IBRT 2.0, as the KONEs American office made the decision to implement IBRT 2.0  
in Canada. It says this raises doubts as to whether there really is an attendance  
problem as claimed, and also informs a consideration of reasonableness. For example,  
the Union identifies the following as possible alternatives that were not considered:  
coaching and progressive discipline; the use of the Continuous Work Process function,  
which sets general expected timeframes for the completion of specific tasks; increasing  
the ratio of supervisors to job sites; using a sign-in sheet at job sites; phoning the  
foreman to confirm attendance of the crew; oversight of crews by general contractors;  
using IBRT 1.0; and modifying IBRT 2.0 through the on/off methoddescribed in the  
Board Order.  
95  
The Union relies on cases arising in the context of drug and alcohol testing for  
the principle that an employer must demonstrate the existence of a general problem  
intended to be addressed by privacy invasive means: e.g., Irving Pulp & Paper Ltd.  
2013 SCC 34 (Irving). It also relies on subsequent arbitral decisions that it says apply  
the Irving approach to workplace surveillance. The Union distinguishes Kadant as  
involving safety and security concerns, which do not exist in the present case.  
96  
With respect to the privacy analysis, the Union submits that analysis must be  
considered in light of Charter values. Further, the Union submits that Schindler pre-  
dates Irving and did not consider the Supreme Court of Canadas directions on the  
balancing of interests approach, which it says is more nuanced than a technical  
application of the reasonableness test in PIPA. The Union also submits that the safety  
considerations underlying the introduction of the Safety Locator, and accepted in KONE,  
do not exist in the present case.  
97  
In sum, the Union submits that the speculative and hypothetical nature of  
KONEs claimsare not proportionate to the seriousness of the privacy invasion, offence  
to employee dignity, and breach of trust resulting from the use of the IBRT 2.0. As a  
remedy, it seeks an order that KONE cease and desist from utilizing the geo-  
surveillance features of IBRT 2.0, and that KONE be give a period of time not exceeding  
three months to implement the award.  
THE EMPLOYERS REPLY  
98  
In KONEs view, the Unions submissions are misleading and mischaracterize the  
facts and evidence. In particular, it says the Unions characterization of IBRT 2.0 as  
constituting continuous, real-time monitoringof employees is simply incorrect. KONE  
- 25 -  
says the fact that IBRT 2.0 collects Proximity Information in three-minute intervals  
during working hours can, at best, be described as continuous collection, which the  
OIPC was not concerned about in Schindler or KONE. In KONEs submission,  
continuous real-time monitoring involves the constant review of information by the  
collecting organization: the concern does not relate to how often the technology collects  
points of data, but how continuously that data is monitored by the collecting  
organization.  
99  
KONE also says the Union has mischaracterized the law. It submits the Union  
has failed to provide any basis to depart from the OIPC’s conclusions in Schindler and  
KONE. Further, KONE notes that while Schindler was decided a few weeks before  
Irving, it has been applied in numerous OIPC and arbitral decisions after Irving.  
100  
KONE says the Unions allegations regarding access and storage of the IBRT  
Information were raised for the first time during cross-examination of KONE witnesses  
and in the Unions final argument. It says these allegations go beyond the scope of the  
Grievance and were never raised in the particulars exchanged between the parties and,  
as a result, should not be considered.  
V.  
ANALYSIS AND DECISION  
THE INTERIM APPLICATION  
101  
102  
In support of the Interim Application, the Union filed written submissions and  
statutory declarations from two bargaining unit members who are KONE construction  
employees. KONE filed a response submission as well as an affidavit from Mr.  
Tominac.  
In the Interim Application, the Union sought an order that the GPS function of  
IBRT 2.0 be disabled or, if that was not possible, that IBRT 2.0 not be implemented until  
a decision on the merits of the Grievance was issued. On August 11, 2021, i.e., after the  
Board Order was issued, the Union provided a reply submission in which, among other  
things, it modified the relief sought to request that I order the use of the on/offmethod,  
as set out in the Board Order, until the determination of the Grievance at the hearing.  
As I advised the parties at the time, I found this material change in the nature of the  
relief sought, as well as other new arguments raised by the Union in reply for the first  
time, constituted improper reply. In any event, the parties provided additional  
submissions on those points.  
103  
104  
Also, it should go without saying that while I have set out the evidence from the  
hearing above, my bottom-line decision of August 12, 2021 was based only on the  
submissions and evidence before me at that time.  
Pursuant to Section 92 of the Code, arbitrators in BC have the authority to  
provide interim relief during an arbitration proceeding. In determining whether to issue  
- 26 -  
such discretionary relief, arbitrators will generally consider whether the applicant has  
established the following requirements:  
(1) An adequate remedy would be unavailable at the final hearing without an  
interim order;  
(2) The claim must not be frivolous or vexatious and must usually be based on a  
prima facie case;  
(3) An interim order must not penalize the respondent in a manner which will  
prevent redress if the application fails on its merits; and  
(4) The interim order must be consistent with the purposes and objects of the  
Code.  
(e.g. Accenture Business Services for Utilities v. Canadian Office & Professional  
Employees Union, Local 378, [2008] B.C.C.A.A.A. No. 115 (Taylor); Zellstoff Celgar Ltd.  
and PPWC Local 1 (Time Off Grievance), [2015] B.C.C.A.A.A. No. 114 (Fleming); cited  
by the parties).  
105  
As noted in Zellstoff Celgar, interim relief “is reserved for extraordinary  
circumstances and should not be granted as a matter of course. Further, the applicant  
must establish that interim relief is necessary in order to preserve a meaningful  
remedy, and is generally only available in cases of demonstrable urgency and to avoid  
irreparable harm: para. 20.  
106  
107  
For the following reasons, I find that the Union failed to establish the  
requirements set out above. Accordingly, I declined to exercise my discretion to grant  
the interim relief sought.  
First, I am not satisfied that an adequate remedy pending the final hearing would  
not be available without an interim order. In submitting that there was no adequate  
remedy available, the Union likened the GPS features of IBRT 2.0 to “an ankle  
bracelet”, arguing that “the difference between an ankle bracelet and a GPS-tracking  
enabled cell phone is only in hardware - not in functionality”. It further argued that the  
requirement to carry the Device during working hours, with the GPS features of IBRT  
2.0, “is the way cattle and ex-con sex offenders are treated.  
108  
I disagree. Ankle bracelets can allow for continuous and real time tracking. In  
contrast, IBRT 2.0 does not allow KONE to locate or see the specific location or  
movements of employees in real-time, during work hours or outside of them. IBRT 2.0  
only allows KONE to see how far the employees Device is from the perimeter of the job  
site, during work hours. This information is not available till 24 hours later, after the  
employee submits a request to be paid for that time. These facts were set out in Mr.  
Tominacs affidavit and were not persuasively challenged by the Union. Thus, I find the  
level of intrusiveness occasioned by the technology is far less than that involved with  
ankle bracelets.  
109  
Further, the case law relied upon by the Union in arguing that there was no  
adequate remedy available arose in the context of drug and alcohol testing. I find the  
- 27 -  
case law in the drug and alcohol testing context is not helpful to the circumstances of  
the present case. The extreme level of bodily intrusion involved in those cases, and the  
corresponding impact on the availability of an adequate remedy in the interim, simply is  
not invoked or occasioned by IBRT 2.0. Instead, I find that the impugned functions of  
IBRT 2.0 fall on the lower end of the spectrum of intrusiveness of employee privacy. In  
reaching that conclusion, I have considered the following facts, among others: the  
Proximity Information is only available for working hours during which the employee  
claims pay; the Proximity Information is available 24 hours later, not in real-time; as a  
result, KONE cannot locate or trackan employee located through IBRT 2.0 in real-  
time; and the IBRT Information is not continuously monitored.  
110  
The arbitral jurisprudence has recognized that where a breach of privacy has  
been established, an award of general damages can be appropriate - the circumstances  
of each case dictate where the amount of damages falls on the spectrum from moderate  
to significant: Seaspan ULC v. Canadian Merchant Services Guild, [2017] C.L.A.D. No.  
22, para. 132. In light of my findings above regarding the appropriate context of the  
level of intrusiveness involved the present case, I find that an award of general  
damages would provide an adequate remedy if a breach of privacy is established on the  
merits. In this respect, I also note that the test for interim relief involves a consideration  
of whether an adequate, not the preferred or ideal, remedy is available.  
111  
112  
Second, I find that the original relief sought in the Interim Application would  
penalize KONE in a manner which would prevent redress if the Grievance fails on the  
merits.  
KONE submitted, and the Union did not deny, that the IBRT 2.0 system was  
rolled out in March 2021, with notice that IBRT 1.0 would be imminently shut down. That  
scheduled shutdown occurred on July 15, 2021. In other words, IBRT 2.0 was already  
in place at the relevant time, with the knowledge that IBRT 1.0 would be shut down  
imminently. I find that the relief sought in the Interim Application would either require  
KONE to utilize a different, temporary time entry system, or to modify IBRT 2.0 so that it  
did not collect GPS information. In his affidavit, Mr. Tominac set out some of the  
difficulties associated with verifying attendance through IBRT 1.0, and the impracticality  
of constant supervision on job sites. I find that disabling the GPS function of IBRT 2.0,  
or discontinuing the use of IBRT 2.0 altogether, would be entirely inconsistent with the  
KONEs purposes for using IBRT 2.0 in the first instance. In this regard, I note the  
following evidence of Mr. Tominac in his affidavit:  
The location information collected by IBRT 2.0 is important,  
because it allows KONE to verify that an employee was at the  
jobsite during the period of time for which that employee was paid.  
Since KONEs supervisors cannot directly monitor construction and  
modernization employees during working hours, this data allows  
the company to monitor attendance. It also allows KONE to confirm  
for its clients that its employees were present on the jobsite for all  
hours that were billed to the client.  
- 28 -  
113  
Mr. Tominac also provided affidavit evidence of the significant administrative  
resources expended upon dealing with manual time entries during the illegal strike,  
when the majority of employees refused to use IBRT 2.0 for time entry. I accept this  
evidence as demonstrative of the administrative expense that would be occasioned on  
KONE if it had to discontinue the use of IBRT 2.0 on an interim basis.  
114  
With respect to the “on/off” method proposed by the Union in its reply  
submission on the Interim Application, I have already found it was improper reply and  
should not be considered. Further and in any event, I find the on/offmethod would be  
inconsistent with the purposes for which KONE implemented IBRT 2.0 in the first  
instance (as set out in the April 23 Letter). Mr. Tominac provided affidavit evidence  
regarding the significant practical and administrative difficulties associated with the  
on/offmethod, as follows:  
In order to enter time using IBRT 2.0, the employee must select a  
specific network (i.e. a particular elevator or escalator) when  
location services are enabled. Using the [on/off method], an  
employee would only be able to enter time spent on a project at a  
specific network if they are still physically located at that network.  
The system will not allow time entry if the employee is physically in  
another location. Therefore, if an employee moves location in a day  
or engages location services while not at the specific network, they  
will not be able to enter time.  
More importantly, even if the employee is located at the specific  
network, I am informed by KONEs IT and accounting departments  
that time entered using this [on/off method] may not allow for the  
automatic update of time and work progress on the back end of the  
software. In other words, it may interfere with the applications  
ability to correctly create time and progress reports, which are  
connected with payroll, finance and operations enterprise software.  
This would create a serious administrative issue for KONE, and  
could interfere with payroll, client billing, and project management.  
115  
While the Union claimed these statements were speculative, I note Mr.  
Tominacs evidence was that these conclusions were informed by both IT and  
accounting departments at KONE. In these circumstances, I find the “on/off” method  
would not be a viable solution and requiring KONE to utilize it in the interim would  
penalize KONE.  
116  
Third, in my view, granting an interim order would not be consistent with the  
purposes and objects of the Code. The conceptual premise of the Unions modified  
relief is fundamentally inconsistent with the original interim relief sought. Specifically, in  
the Interim Application, the Union requested that the GPS function of IBRT 2.0 be  
disabled on the basis that no arbitral order at the end of the proceedings could remedy  
this [privacy] violation suffered by employees. In short, the Unions position was that  
any collection of location or proximity information creates an unacceptable harm. In  
contrast, the modified relief sought would see employees turning their location services  
- 29 -  
“on”, and hence having their location or proximity information collected, twice per day.  
While this is not a viable approach to meet KONEs objectives, it would necessarily  
involve the collection of some location information and, therefore, is a marked and  
inexplicable departure conceptually from the original interim relief sought.  
117  
More importantly, I find that granting the relief sought would effectively  
undermine the Board Order. The “on/off” method set out in the Board Order was  
intended to be a temporary measure, to last a maximum of six days. It was also  
expressly made without precedent over the Interim Application before me. To argue that  
the Board’s Order “inherently” affirmed that the collection of GPS information was a  
severable function in IBRT 2.0, or otherwise indicated or supported the extended use of  
the “on/off” method, would be fundamentally inconsistent with the circumstances in  
which the Board Order was granted (as recognized in the recitals in the Board Order)  
and the temporary and non-precedential nature of it.  
118  
The purposes of the Code include encouraging cooperative participation between  
the parties in resolving workplace issues, and promoting conditions favourable to the  
orderly, constructive, and expeditious settlement of disputes. Granting relief sought that  
represents a conceptual about-facein a reply submission and, more importantly,  
would effectively undermine the express parameters of a Board order, serve none of  
these purposes.  
119  
120  
121  
Given my findings above, I did not need to consider whether the Union made out  
a prima facie case. In sum, for the reasons given, I declined to grant the interim relief  
sought.  
WITNESS CREDIBILITY  
Overall, I found each of KONEs witnesses at the hearing to be credible and  
reliable. Contrary to the Unions assertions, the evidence of KONEs witnesses was not  
shaken on cross-examination in any material way. To the contrary, I find they candidly  
acknowledged when they were not aware of the information they were being asked  
about.  
Similarly, the Unions witnesses were candid and forthright. Where they provided  
their subjective opinions regarding IBRT 2.0, they readily admitted they were not fully  
familiar with the application. They also acknowledged they could have gone to their  
supervisors for clarification or further information to allay their concerns, but had not  
done so. I note, however, that the concern that IBRT 2.0 was tracking them regularly  
and outside of work was entirely speculative and there was no evidence to support that  
assertion. As a result, I assign no weight to that evidence.  
DECISION ON THE MERITS: ANALYSIS UNDER PIPA  
122  
KONE submits that previous OIPC decisions from the elevator industry are  
determinativeof the present case. While I ultimately agree with the analysis in those  
- 30 -  
decisions, I have reached that conclusion based on a consideration of the facts and in  
the context of the evidence before me.  
123  
The statutory purpose of PIPA is to is govern the collection, use and disclosure  
of personal information by organizations in a manner that recognizes both the right of  
individuals to protect their personal information and the need of organizations to collect,  
use or disclose personal information for purposes that a reasonable person would  
consider appropriate in the circumstances: Section 2. In meeting its responsibilities  
under the statute, an organization must consider what a reasonable person would  
consider appropriate in the circumstances”: Section 4(1). In short, and as will be  
discussed below, the analysis of privacy issues under PIPA is marked by both a  
balancing of interests approach, and the test of reasonableness.  
THE IBRT INFORMATION IS EMPLOYEE PERSONAL INFORMATION  
124  
Section 1 of PIPA defines personal informationand employee personal  
information, as follows:  
“personal informationmeans information about an identifiable  
individual and includes employee personal information but does not  
include (a) contact information, or (b) work product information; …  
employee personal informationmeans personal information about  
an individual that is collected, used or disclosed solely for the  
purposes reasonably required to establish, manage or terminate an  
employment relationship between the organization and that  
individual, but does not include personal information that is not  
about an individual's employment. …  
125  
126  
For the reasons that follow, I find that the IBRT Information is employee  
personal informationas defined in section 1 of PIPA.  
Specifically, I find that the IBRT Information is personal about employees that is  
collected, used, and disclosed for the purposes set out in the GPS Systems Policy.  
Those purposes expressly include: facilitating the “management and tracking of  
employee attendance, including administering attendance requirements and payroll,  
and identifying and investigating inaccurate timekeeping; facilitating investigations;  
facilitating management, coaching, training or skill improvement of employees; and for  
planning and operational improvement purposes, including safety, operational  
efficiency and productivity. These are virtually identical to the purposes identified in the  
April 23 Letter.  
127  
Further, for the reasons set out below, I find these purposes are reasonably  
required to establish, manage, or terminate the employment relationship between  
KONE and the affected employees, and that the IBRT Information is used solely for  
those purposes.  
- 31 -  
128  
129  
In Schindler, the employer installed a GPS and engine monitoring system in its  
service vehicles, which were used by its mobile field mechanics to go to job sites. The  
employer used the information generated from the system to help determine if  
employees were driving safely and meeting their hours of work obligations.  
Commissioner Denham held that the information collected and used by the  
system in question was employee personal information, and stated as follows:  
Schindler's purposes are, as the complainants acknowledge, to  
manage employee performance--to manage productivity, manage  
hours of work, and ensure they drive safely and lawfully.  
These are legitimate, reasonable, business purposes. A business  
is entitled to ensure, subject to applicable laws and agreements,  
that its employees meet productivity standards. It is also a  
reasonable purpose for a business to collect personal information  
to ensure that its employees are actually working the hours for  
which they are paid. It is, at least reasonable for a business to be  
able to ensure that its employees are, in the course of their  
employment, driving company vehicles lawfully and with  
reasonable care. I therefore find that the information is collected for  
purposes reasonably required to manage an employment  
relationship. (paras. 120-121, emphasis added)  
130  
In KONE, Adjudicator Alexander adopted this reasoning to find that KONEs  
purposes for collecting and using GPS information through the Safety Locator  
application were reasonably required to manage the employment relationship, and  
stated:  
KONE has a legitimate interest in knowing where its employees are  
during work hours, maximizing efficiency for dispatching and  
vehicle routing, and using this technology to provide better  
customer service. Employers are also entitled to take reasonable  
steps to ensure that their employees are working the hours for  
which they are paid. Time recording using GPS is, for example,  
similar to employees having a swipe card system to record their  
work attendance or being directly observed by a supervisor at their  
workstation. (para. 26, emphasis added)  
131  
Similarly, in the present case, I find that the IBRT Purposes are legitimate and  
reasonable business purposes related to establishing, managing, or terminating an  
employment relationship. It is a reasonable business purpose to verify and confirm that  
employees are working the hours for which they are claiming pay (i.e., verifying against  
time theft). In the same vein, it is also a reasonable business purpose to verify and  
confirm that an employee is attending work for the full scheduled hours of work (i.e., to  
verify an employee has not arrived late, left early, or taken extended breaks, regardless  
of whether he or she is claiming pay for that time). It is also a reasonable purpose that  
the collection of the IBRT Information may lead to the identification and investigation of  
- 32 -  
inaccurate timekeeping or poor attendance, facilitate investigations in that regard, and  
facilitate management/coaching/training of employees on those issues. In addition, I find  
it is a reasonable purpose to collect the IBRT Information as a means of ensuring  
employee safety, such as through the roll call function. Further, I am satisfied on the  
evidence that the collection, use or disclosure of the IBRT Information is solely for the  
reasonably required purposes identified above. There was no evidence that KONE has  
put the IBRT Information to use for some collateral purpose.  
THE COLLECTION AND USE OF THE IBRT INFORMATION IS REASONABLE AND AUTHORIZED  
132  
133  
I turn now to consider whether KONEs collection and use of the IBRT  
Information is consistent with PIPAs provisions for employee personal information.  
Before doing so, I note the Union argued that the applicable sections of PIPA at  
this juncture are sections 11 and 14, which relate to the collection and use of personal  
information. I disagree. As noted, I have already found that the IBRT Information is  
employee personal information. Accordingly, the applicable sections are sections 13  
and 16, which specifically address the collection and use of employee personal  
information.  
134  
Specifically, sections 13 and 16 state as follows:  
13 (1) Subject to subsection (2), an organization may collect  
employee personal information without the consent of the  
individual.  
(2) An organization may not collect employee personal information  
without the consent of the individual unless  
(a) section 12 allows the collection of the employee  
personal information without consent, or  
(b) the collection is reasonable for the purposes of  
establishing, managing or terminating an employment  
relationship between the organization and the individual.  
(3) An organization must notify an individual that it will be collecting  
employee personal information about the individual and the  
purposes for the collection before the organization collects the  
employee personal information without the consent of the  
individual.  
16 (1) Subject to subsection (2), an organization may use  
employee personal information without the consent of the  
individual.  
(2) An organization may not use employee personal information  
without the consent of the individual unless  
- 33 -  
(a) section 15 allows the use of the employee personal  
information without consent, or  
(b) the use is reasonable for the purposes of establishing,  
managing or terminating an employment relationship  
between the organization and the individual.  
(3) An organization must notify an individual that it will be using  
employee personal information about the individual and the  
purposes for the use before the organization uses the employee  
personal information without the consent of the individual. …  
135  
136  
137  
To summarize, KONE may collect or use employee personal information, without  
consent, if: the collection or use is reasonable for the purposes of establishing,  
managing, or terminating and employment relationship between KONE and the  
individual; and KONE first notifies the individual that it will be collecting or using  
employee personal information about the individual and the purposes for it.  
Again, sections 13 and 16 import a reasonableness analysis. As Commissioner  
Denham explained in Schindler, sections 13 and 16 are not redundant, and require a  
further determination of whether the collection or use of employee personal information  
itself, not the purposes for it, is “reasonable”, viewed in light of a what a reasonable  
person would consider appropriate in the circumstances: para. 141.  
The Union asserts that, to do so, KONE is required to demonstrate a substantial  
problem with employee attendance and accurate timekeeping, relying in part on  
decisions applying federal and other statutory regimes. This position has been rejected  
in OIPC decisions in BC. In Schindler, Commissioner Denham rejected the  
complainants’ reliance on decisions under federal privacy legislation and their  
characterization of those decisions as requiring the demonstration of a substantial  
problem that the technology in issue is intended to address: para. 127. Adjudicator  
Alexander made similar observations in KONE (paras. 38-43), and in ThyssenKrupp  
Elevator (Canada) Ltd., Order P13-02 (“TKE”) (paras. 45-46), noting that instead, the  
overriding criterion under PIPA is reasonableness.  
138  
In Schindler, Commissioner Denham set out a non-exhaustive list of factors to  
consider in the assessment of reasonableness under sections 13 and 16, i.e.:  
(a) the sensitivity and amount of the information being collected or used;  
(b) the likelihood of effectiveness;  
(c) the manner of collection;  
(d) the availability of alternatives; and  
(e) the potential offence to employeesdignity (paras. 142-146)  
139  
Sensitive information may include, for example, information revealing health  
history or medical conditions: para. 142. Another consideration in the context of  
sensitivity may be whether the personal information is collected covertly or overtly: para.  
146. On this point, Commissioner Denham stated that covert monitoring has the  
- 34 -  
potential to capture considerable amounts of personal information, especially where it is  
pervasive and continuous: ibid. With respect to the amount of information,  
Commissioner Denham held that the amount of personal employee information being  
collected or used should be tailored to include only that which is reasonably required to  
achieve the organization’s purposes: para. 142.  
140  
In the case before her, Commissioner Denham held that while the GPS data  
revealed an employees location at a given time, that information arose in the context of  
work-day activities and responsibilities, which diminished the sensitivity of the location  
information. In this regard, she noted that the GPS location information was not  
collected and used routinely and was not continuously monitored. Further, it was only  
accessed as one part of the material that could be used in a workplace investigation:  
paras. 153-156.  
141  
With respect to assessing whether the collection or use is likely to be effective in  
fulfilling the organization’s objectives, Commissioner Denham stated that an  
organization does not have to establish effectiveness to a standard of certainty, but  
there should be a reasonable likelihood of effectiveness: para. 144. She found that  
Schindlers collection and use of the information at issue was reasonably likely to be  
effective in fulfilling its stated objectives. For example, she accepted Schindlers  
evidence that, before it acquired the technologies at issue, its efforts to ensure that  
employees were driving safely depended on outside complaints and chance  
observations by supervisors, and that the information being collected permitted it to take  
a more proactive approach. In particular, she held as follows:  
Like other employers, Schindler has an interest in ensuring that its  
employees actually work the hours they are supposed to and for  
which they are paid. It is beyond controversy that most employers  
keep some track, through various means, of whether their  
employees are working the hours for which they are paid.  
In an office or factory setting, this may be done by direct  
observation, or it may be done using other means, such as time  
clocks, access swipe cards or sign-in sheets. As the evidence  
shows, Schindlers elevator mechanics are a mobile workforce and  
do not report to any Schindler office or dispatch facility before or  
after work. The mechanics work largely alone and all mechanics  
work without constant supervision, with a roughly 1:10 supervisor-  
to-employee ratio. It is, Schindler says, impossible for Schindler to  
verify the whereabouts and activities of its mechanics at all times.  
(paras. 158-159).  
142  
With respect to the availability of alternatives, Commissioner Denham rejected  
the argument that the employer must demonstrate it has exhausted all available  
alternatives and that nothing else can be done to achieve the purpose less intrusively,  
regardless of cost or reasonableness: para. 129. She explained as follows:  
- 35 -  
If alternatives exist, an organization should be prepared to show  
that it has given them reasonable consideration. I am not  
suggesting that an organization absolutely must adopt an available  
measure simply because it is a less privacy-intrusive, or the least  
privacy-intrusive, without regard to cost to the organization or the  
effectiveness of the collection, use or disclosure in achieving the  
organization’s stated goal. PIPA does not focus solely on privacy  
and privacy does not always trump the interests of an organization,  
as s. 2 makes clear. Rather, the assessment of alternatives should  
consider the balance between the organization’s interests and, as  
s.2 says, the right of individuals to protect their personal  
information. (para. 145)  
143  
Commissioner Denham accepted that Schindler had previously relied on  
employee self-reporting and it was not as effective, was after-the-fact, and was often  
inaccurate and incomplete. She also accepted that, given the high number of  
employees for each field supervisor, direct observation was not as effective an  
approach: para. 160.  
144  
Turning to offence to employeesdignity, in Schindler, there was affidavit  
evidence from employees that they felt the technology in issue was demoralizing. They  
stated that it felt offensive to their dignity to be monitored electronically, and to know  
that the employer could question them on their locations and movements at any time  
based on the data. Commissioner Denham disagreed, and held as follows at paras.  
164-165:  
There is nothing remarkable in the management of a company  
questioning its employees about their compliance with company  
rules as to hours of work, performance of assigned work tasks  
(including following assigned service routes) and use of company  
property according to the rules. If the complainants are suggesting  
that use of data materially affects an employers right to pose such  
questions, I do not agree.  
In any event, I am not persuaded that any offence to the dignity of  
employees tips the scales against Schindler. I say this given the  
nature of the data being collected and the rules under which  
information is accessed and used by Schindler. I am particularly  
influenced by the fact that the GPS-derived location information is  
not continuously monitored. If an organization were to engage in  
continuous, real-time monitoring of employeeswhereabouts,  
during or outside work hours, for employment management  
purposes, I would want to look very carefully at the situation.  
145  
Commissioner Denham concluded that Schindler’s collection and use of  
employee personal information for the stated purposes and in the manner described,  
was reasonable and authorized under PIPA.  
- 36 -  
146  
As noted by KONE, the factors set out in Schindler have been subsequently  
applied in numerous OIPC decisions, such as KONE and TKE, and in arbitration awards  
relating to the collection and use of employee personal information. In particular, it  
heavily relies on the decision in KONE. In KONE, Adjudicator Alexander considered the  
factors set out in Schindler, and concluded that KONEs collection and use of employee  
personal information through Safety Locator was reasonable and authorized under  
sections 13 and 16 of PIPA.  
147  
In particular, Adjudicator Alexander found that the GPS information collected by  
Safety Locator was not significantly more sensitive than that in Schindler, and that  
KONE was not collecting more personal information than was necessary to meet its  
purposes. He noted, for example, that KONE was not collecting location information  
when the mechanics were on lunch breaks, or not at work: para. 51.  
148  
149  
With respect to the likelihood of effectiveness, Adjudicator Alexander was  
satisfied that, among other things, Safety Locator was likely to be an effective tool for  
KONE to independently verify employee attendance, which is a legitimate business  
purpose: para. 55.  
Adjudicator Alexander also found that the manner of collection and use of the  
personal information was appropriate, noting that the collection was overt, not covert.  
He also noted that even though Safety Locator collected real-time information about  
employee location, KONE did not continuously monitor or review the GPS information.  
In this regard, he held as follows at paragraph 61:  
KONE does not continuously monitor or review the GPS  
information. The information is only transmitted to KONE in batches  
when a mechanic inputs that he or she is leaving a client site, and  
the information is generally only reviewed by managers and  
supervisors on a weekly basis for approving employee payroll and  
verifying client invoices. KONE has historically known how long  
mechanics spend on each client site based on mechanic time  
reporting, but a primary difference with the new GPS technology  
used by KONE is that this new technology enables KONE to  
independently confirm that its employees are at client work sites  
during work hours. (emphasis added)  
150  
Adjudicator Alexander held that while KONEs periodic review of the GPS  
location information was more frequent and systemicthan in Schindler, it was less  
significant of a factor than, for example, with video surveillance, because the GPS  
information only enables KONE to determine whether its employees are at work  
locations, not other more detailed information: para. 62.  
151  
With respect to the availability of less privacy-invasive alternatives, Adjudicator  
Alexander held that because KONE mechanics were mobile and generally worked  
alone over widely distributed geographic areas, regular in-person supervision was not  
practical: para. 64. He also held as follows:  
- 37 -  
As stated above, I am satisfied that the technology KONE employs,  
when fully implemented, is likely to help KONE achieve its stated  
purposes for the technology. It enables KONE to verify employee  
attendance, and I am persuaded that KONE will be better able to  
achieve its objectives by using the new technology system  
compared to less privacy intrusive alternatives. (para. 65,  
emphasis added)  
152  
Turning to offence to employee dignity, Adjudicator Alexander held the  
technology was designed to alert KONE to atypical mechanic activity it would not  
otherwise know about, which allowed KONE to make follow-up inquiries. He held the  
use of the technology was not as intrusive, for example, as continuously monitoring an  
employees actions using video surveillance, or computer keystroke technology without  
an employees knowledge. He concluded that KONEs use of the GPS information was  
not an offence to employee dignity that precluded KONE from collecting and using that  
information: paras. 67-70.  
153  
154  
I turn now to the present case. For the reasons that follow, I find that KONEs  
collection and use of the IBRT Information for the stated IBRT Purposes is reasonable  
and authorized under sections 13 and 16 of PIPA.  
First, I find that the sensitivity of the IBRT Information is on the lower end of the  
spectrum, and in any event no more sensitive than in Schindler or KONE (indeed, it is  
less sensitive as, for the most part, it is not real-time information). The information from  
IBRT 2.0 allows KONE to determine whether an employee is within the geofence during  
work hours, for the time for which he or she is claiming pay. The collection and use of  
the IBRT Information is limited to an employees working hours (and not during unpaid  
lunch breaks) in the context of work activities with assigned job sites and tasks. As  
recognized in Schindler and KONE, this context diminishes the sensitivity of the  
information at issue.  
155  
Further, I find the IBRT Information is not continuously monitored or even  
continuously available. In this regard, I disagree with the Unions assertion that IBRT 2.0  
mustbe collecting actual location information, and on a continuous basis. This  
assertion is speculative. More importantly, and in any event, there is simply no  
persuasive evidence to find that KONE continuously monitors the IBRT Information. The  
fact is that, other than the roll call function, it is not available in real-time, and is only  
available 24 hours after an employee requests to be paid.  
156  
I also find that the IBRT Information is not being used routinely. While the  
evidence was that the supervisors are accessing the roll call function daily to determine  
who is using the application, it is essentially a taking of daily attendance, which is  
entirely reasonable. With respect to Proximity Information and IFP data, the evidence  
was that supervisors reviewed that information on a weekly basis in order to verify  
payroll, which in turn impacts accurate billing. Further, the evidence was that if there  
was a concern arising out of the review of the IBRT Information, e.g., a discrepancy in  
the amount of work time recorded and the Proximity Information or IFP data for that  
- 38 -  
employee, that information would serve as a starting point for a discussion with the  
employee to determine what had happened, but would not be determinative in and of  
itself. KONEs witnesses also recognized there may be valid explanations for such  
discrepancies and, in such a case, that would be the end of the matter. Accordingly, I  
find the Unions characterization of a low IFP ratio as a scar on the employees record  
and a consequential increase in propensity for management scrutinyis unsubstantiated  
and inaccurate.  
157  
Second, I find that the collection and use of the IBRT Information is reasonably  
likely to be effective in meeting the IBRT Purposes of, among other things, verifying  
employee attendance, and ensuring accurate timekeeping and customer invoicing. The  
evidence was that construction employees can work on a relatively mobile basis, at job  
sites that are geographically distributed, and can move from job site to job site at times.  
I accept KONE’s evidence that, given the number of job sites and the geographic  
distance between them, it is not practical for a supervisor to be physically and regularly  
present at each job site to provide traditional in-person supervision. In that context, I  
accept that prior to IBRT 2.0, KONEs efforts to verify employee attendance and  
accurate timekeeping largely required reliance on chance observation by supervisors, or  
outside complaints. The IBRT Information permits KONE to take a more informed,  
accurate, and proactive approach not only to ensuring against time theft, but also to  
verify that employees are at the job site for their scheduled hours.  
158  
In this regard, I disagree with the Unions assertion that IBRT 2.0 only stands to  
be effective against time theft, and not against general attendance problems. The IBRT  
Information allows KONE to independently verify the accuracy of employee attendance,  
whether that is to confirm that the employee was at work for the expected duration (the  
idea of “8 for 8”), or whether that is related to determining if time theft has occurred. In  
this respect, I find the Union mischaracterizes the evidence of KONE witnesses in its  
final argument, and relies on specific excerpts instead of considering the evidence as a  
whole and in the context within which certain questions were asked. For example, in  
cross-examination, Mr. Froystad agreed with the suggestion put to him that the  
geofence does not “help” if an employee “is having attendance issues but reports their  
time to reflect that”. The Union relies on this evidence in part as showing that IBRT 2.0  
“cannot address late arrivals, early departures, no shows, or untimely sick calls”.  
However, I must consider the evidence as a whole. Clearly, if an employee does not  
attend work, the application will not be turned on and there will be no reporting  
information. However, if the employee arrives late, leaves early or takes extended  
breaks, and the employee is running the IBRT 2.0 as directed, the IBRT Information  
would demonstrate that the employee is not attending work for his full scheduled hours,  
regardless of whether he then compounds the issue by claiming pay for the time not  
worked. As noted, the evidence was that there may be a valid explanation, but the IBRT  
Information allows the supervisor to have a conversation with the employee to  
determine what occurred. In sum, in my view, IBRT 2.0 is likely to be an effective tool to  
independently verify employee attendance (both in terms of general attendance issues  
and time theft), accurate time keeping, and accurate invoicing, all of which are  
legitimate business purposes.  
- 39 -  
159  
Third, I find that the manner of collection of the IBRT Information is reasonable  
and appropriate in all the circumstances. The collection and use of the IBRT Information  
is, and has been throughout, entirely covert. I have also found that the IBRT Information  
is not continuously reviewed or monitored. Similarly, I have found that KONE has  
tailored the amount of information being used and collected to only that which is  
reasonably necessary to achieve its purposes. Mr. Tominac’s evidence demonstrates  
the efforts KONE made to have IBRT 2.0 in Canada be less privacy-intrusive than the  
American version. In addition, there was evidence that access to the IBRT Information  
is tailored amongst management. For example, Mr. Melanidis testified that he can only  
access information relating to employees who are not within his geographic area of  
responsibility. Mr. Tominac testified that he could not access the IBRT Information.  
While I agree that KONE’s evidence in this regard could have been more detailed,  
ultimately, I find the mere fact that some of KONE’s witnesses were not aware of the  
exact parameters of IBRT 2.0, and the fact that KONE did not call a technology expert  
to provide expert evidence, does not alter or undermine the reality that the application  
was tailored to be less privacy-intrusive.  
160  
I also note that KONE provided advance notice of the introduction of IBRT 2.0 to  
the Union and employees, and implemented substantive training that employees were  
required to undertake in advance. In addition, in the April 23 Letter, KONE advised the  
Union of the nature of the information being collected, the purposes for which it was  
being collected, and provided a draft GPS Systems Policy to the Union. The information  
provided in the April 23 Letter is consistent with that set out in KONE’s policies. There is  
no dispute that the Employee Privacy Policy and Mobile Device Policy were already in  
place at the time. The IBRT Policy and the GPS Systems Policy were introduced  
specifically for IBRT 2.0. They set out the nature of the information collected, the  
purposes for which it is collected and expectations of employee responsibilities in that  
regard, thus giving both the Union and employees further detailed information in  
advance.  
161  
162  
Fourth, in considering the availability of less privacy-intrusive alternatives, KONE  
argues that it does not need to prove the existence of a substantial problem to justify its  
collection and use of employee personal information. It says that, in any event, there is  
a demonstrable problem with employee attendance and performance in this case.  
I echo and agree with the conclusions in Schindler, KONE, and TKE that the  
analysis under sections 13 and 16 of PIPA is driven by reasonableness, as opposed to  
requiring an organization to meet a checklist of factors. In the context of the  
reasonableness analysis and considering whether there are less privacy-intrusive  
alternatives, it is relevant that the evidence before me demonstrates a problem with  
employee attendance in this case. KONE has provided evidence of at least 38  
documented instances in the past two years of employees arriving late, leaving early, or  
taking extended lunch or coffee breaks, and the chance circumstances in which these  
incidents were discovered.  
163  
The Union asserts there are several less intrusive alternatives to IBRT 2.0,  
including: using IBRT 1.0; increasing the number of supervisors; relying on foremen or  
- 40 -  
mechanics-in-charge; using a sign-in sheet or phone calls to the general contractor to  
report attendance; IBRT modifications such as the “on/off method”; coaching and  
progressive discipline; and using the continuous work process tool. In the Union’s  
submission the existence of various alternatives casts doubt on the severity of the  
problem KONE is purporting to address through IBRT 2.0. Further, it says KONE did not  
attempt or consider alternatives as IBRT 2.0 was imposed upon it by KONEs American  
office.  
164  
I disagree. As stated in Schindler, in assessing the availability of alternatives, an  
employer is not required to demonstrate that it has exhausted all available alternatives  
and that nothing else can be done to achieve the purpose less intrusively, regardless of  
cost or reasonableness. In the context of all the evidence before me, I accept there are  
no less privacy-intrusive alternatives to IBRT 2.0 reasonably available to meet KONEs  
stated objectives.  
165  
166  
I accept the evidence that IBRT 1.0 and previous methodologies inherently relied  
on employee self-reporting, which was not as effective, and could be inaccurate or  
incomplete. In my view, it is not unreasonable for an employer to independently verify  
both employee attendance and accurate time reporting.  
I am also persuaded that, in the context of KONE’s business and the nature of  
work of construction employees, increasing the number of supervisors is cost  
prohibitive, and also ignores the fact that supervisors have many duties other than direct  
observation of field employees. Each of KONE’s witnesses provided compelling and  
consistent evidence in this regard. I also note that, in any event, KONE is in the process  
of, or has, hired, another supervisor in the Lower Mainland.  
167  
168  
The on/off methodsuggested by the Union, and as described in the Board  
Order as a temporary measure, is similarly not effective as an alternative, for the  
reasons set out in Mr. Tominacs evidence, which I accept. In particular, I agree that that  
approach would circumvent the very purposes for which IBRT 2.0 was introduced.  
Relying upon mechanics in charge or foremen is also not a reasonable  
alternative. The evidence was that these positions are filled by members of the  
bargaining unit. They have no responsibility for hiring, firing, or discipline. In any event,  
under the Construction Agreement, mechanics in charge are only required where there  
are four or more employees on site, and the evidence was that this reflects less than  
25% of active job sites.  
169  
The Union also cites coaching and progressive discipline as an alternative,  
relying on the coaching letters in evidence. However, this is a circular argument. The  
evidence was that the specific incidents addressed in the coaching or discipline letters  
were only discovered as a result of a supervisor happening to visit the job site at the  
right time, or as the result of a complaint by a general contractor. KONE argues, and I  
agree, that this demonstrates the difficulty in learning of such incidents in the first place.  
Coaching and progressive discipline are effective tools, but can only be effective if the  
employer is aware of the underlying incident in the first instance.  
- 41 -  
170  
Other alternatives raised by the Union have similar problems in terms of the level  
of effectiveness, or do not allow for independent verification. For example, the  
continuous work process function is used to manage task and project completion- there  
was no evidence that it is used for managing or verify attendance or timekeeping.  
Relying on phone calls to general contractors or customers to verify attendance is not  
reasonable, as it is not reasonable to ask clients or customers to monitor employee  
attendance. Sign-in sheets and other such measures present the same concerns as  
IBRT 1.0, in that there is no meaningful method to verify attendance after the sign-in  
occurs.  
171  
172  
In light of all of the evidence, I find there are no less-privacy intrusive alternatives  
reasonably available to KONE to effectively achieve its stated purposes in the context of  
the workplace in issue.  
Fifth, I turn to consider offence to employee dignity. I start with the recognition  
that surveillance in the workplace by technology will likely have some negative impact  
on employees. The evidence of offence to employees’ dignity in this case came  
primarily from the Union witnesses and their subjective views in that regard. While I  
accept how the witnesses feel about the collection of the IBRT Information, PIPA calls  
for the use of a reasonableness or objective standard. In that context, I agree with  
Commissioner Denhams findings in Schindler above that it is not remarkable for  
management to verify or ascertain employee compliance with company rules regarding  
hours of work: para. 164. I also note that some of the offence expressed by the Union  
witnesses was based on an unproven and unsubstantiated assumption that IBRT 2.0  
was somehow tracking them outside of work hours. Further, and in any event, I find that  
any offence to employee dignity in this case does not tip the scales against KONE,  
particularly in light of the nature of the information being used and collected, the fact  
that the Proximity Information is only available to KONE after 24 hours and after the  
employee requests to be paid for that time, and the fact that, other than the roll call  
function, the IBRT Information is not available real-time nor is it monitored continuously.  
173  
In terms of other relevant factors, I also note the context within which IBRT 2.0  
was introduced to construction and modernization employees. The use of GPS  
technology is not unprecedented at KONE, given the use of the Safety Locator. Further,  
by virtue of the length of time that the Employee Privacy Policy and the Mobile Device  
Policy have been in place prior to the introduction of IBRT 2.0, employees have been  
aware for some time of the requirement to keep Devices on their person during work  
hours. I was not directed to any evidence of that requirement having been grieved. In  
addition, the IBRT Policy and the GPS Systems Policy were specifically created, in light  
of the partieshistorical experience, to address possible privacy-related issues or  
concerns proactively and to provide, in advance, information regarding the purposes  
and use of the IBRT Information.  
174  
In sum, for the reasons set out, I find that KONEs collection and use of the IBRT  
Information is reasonable and authorized under sections 13 and 16 of PIPA.  
- 42 -  
NOTIFICATION REQUIREMENTS  
175  
That is not the end of the matter. Sections 13(3) and 16(3) also require an  
organization to notify an individual that it will be collecting and using employee personal  
information about the individual, and the purposes for the collection and use, before the  
organization collects or uses the employee personal information without the consent of  
the individual.  
176  
For the most part, I find KONE has complied with these notification obligations.  
Specifically, through the April 23 Letter and the GPS Systems Policy, KONE has  
advised both the Union and affected employees of the information that it will be  
collecting and using through IBRT 2.0, and the IBRT Purposes for that collection and  
use. This was done prior to the implementation of IBRT 2.0. In addition, I am satisfied  
that KONE provided substantive training to employees on IBRT 2.0 prior to its  
implementation. As noted earlier, employees are also able to refer to the applicable  
policies and resource materials at any time on their Devices.  
177  
However, I was troubled by the evidence with respect to the HUB application  
and, in that respect, I find that KONE has not met the notification obligations under  
PIPA. As noted above, there was little evidence regarding the information that is  
collected or used by the HUB application, or the purposes for which that information is  
collected or used. I order KONE to provide the Union with such notification within 30  
days of the date of this Award.  
178  
With respect to the Unions arguments regarding the access to and storage of the  
IBRT Information, I agree with KONE that these arguments were not raised in the  
Grievance, were not particularized when the parties exchanged particulars in the pre-  
hearing process, were not raised during any of the numerous case management  
conferences, and were improperly raised for the first time in the Unions response  
argument. As a result, KONE was not able to call evidence to respond to the Unions  
arguments on these points. Accordingly, and in the interests of fairness, I find it would  
be inappropriate to consider these arguments here. However, in the interests of better  
and more transparent labour relations, I would urge KONE to educate itself on these  
issues and provide that information to the Union in a proactive manner so as to avoid  
additional concerns.  
ANALYSIS AND APPLICATION OF ARBITRAL JURISPRUDENCE  
179  
180  
As with the privacy regime, key considerations in arbitral law that apply to this  
case include reasonableness, proportionality, and the balancing of interests.  
Where an employer unilaterally implements a policy or rule in the unionized  
context, it must do so in a manner consistent with the well-known principles set out in  
KVP, para. 34. Specifically, the employer must establish that:  
(1) the policy or rule is not inconsistent with the collective agreement;  
(2) the policy or rule is not unreasonable;  
- 43 -  
(3) the policy or rule is clear and unequivocal;  
(4) the policy or rule must be brought to the attention of the employees affected  
before the company can act on it;  
(5) the employee concerned must have been notified that a breach of the rule or  
policy could result in his discharge if the rule is used as a foundation for  
discharge; and  
(6) the rule should have been consistently enforced by the company from the  
time it was introduced.  
181  
182  
KONE argued that the KVP requirements in issue in this case are #1, 2 and 4  
and that, to its understanding, the remaining KVP requirements were not disputed by  
the Union. The Union did not challenge this assertion in its final argument.  
I find that IBRT 2.0 and the GPS Systems policy are consistent with the  
Construction Agreement. Article 2(3) of the Construction Agreement is a broad  
management rights clause, giving KONE the right to establish and enforce reasonable  
rules of conduct which would include, for example, the GPS Systems Policy and the  
introduction of IBRT 2.0. This right must be considered in combination with Article 2(2),  
through which the Union recognizes that it is KONEs responsibility to maintain the  
highest degree of operating efficiency, and to continue technical development. I was  
not pointed to any provision in the Construction Agreement that limits KONEs general  
right to manage the business and operations in the circumstances, such as how  
employees record their work hours, the verification of employee attendance, etc.  
183  
184  
The second requirement under KVP is that the policy or workplace rule is not  
unreasonable. In this context, arbitrators have adopted a balancing of interests  
approach. That approach must, of course, reflect the context within which the employer  
policy or rule was unilaterally introduced.  
Before turning to the applicable authorities, I want to state that the Unions  
continued reliance on arbitral decisions arising in the context of random drug and  
alcohol testing was not helpful. Those cases generally require evidence of a substantive  
problem in the workplace. Those cases also involve a significantly higher level of  
intrusion on employee privacy and dignity, by way of the seizure and testing of bodily  
samples and invasion of employee bodily integrity. Similarly, the Union’s reliance on  
cases involving random physical or canine-assisted searches of employees or their  
belongings for drugs, or involving mandatory COVID testing policies, was unhelpful, as  
those cases also involve a significantly higher intrusion by way of searching of one’s  
person or again, interference with bodily integrity.  
185  
The particular and extreme level of intrusiveness involved in drug and alcohol  
testing cases has been repeatedly recognized by arbitrators and the courts alike: e.g.,  
Irving, para. 50; Lafarge, infra. It is because of the extreme nature of the intrusion and  
harm to employee privacy that the employer must provide evidence of a proportionate  
or outweighing interest to justify the extreme intrusion. Recognizing that there is a  
spectrum of privacy interests, I cannot find that a similar level of intrusiveness is present  
in the case before me. I will return to this point below.  
- 44 -  
186  
In a similar vein, cases involving covert surveillance of employees are also of  
limited relevance. As discussed below, and as recognized in cases like Kadant, as well  
as many of the cases cited by the Union, arbitrators have distinguished between overt  
and covert surveillance, based on the level of intrusion and offensiveness to employee  
privacy.  
187  
188  
In my view, the cases cited by the parties that are most helpful and instructive to  
the present case are those involving overt workplace surveillance and, in particular,  
Kadant and cases following its analysis.  
In Kadant, the union grieved the installation of overt surveillance cameras on the  
production floor. The employer asserted the purposes of the cameras was to achieve  
greater security and safety in the workplace, and that the scope and use of the cameras  
was a reasonable exercise of management rights.  
189  
Arbitrator Lanyon held that, like the analysis under privacy legislation, arbitral  
jurisprudence applies a reasonableness approach. Arbitrators will assess whether the  
surveillance of employee activity is reasonable in the circumstances, and whether the  
surveillance was conducted in a reasonable manner, proportional to the employers  
legitimate interests. Arbitrator Lanyon reviewed case law stating that while the Charter  
does not apply to private party disputes, common law and arbitral jurisprudence should  
be developed consistent with fundamental Charter values, which include an individuals  
right to privacy: paras. 66-73. Arbitrator Lanyon also reviewed the common law  
recognition of three distinct privacy interests: personal privacy (grounded in the right to  
bodily integrity); territorial privacy (which protects the home and other spaces where the  
individual enjoys a reasonable expectation of privacy); and informational privacy  
(information about ourselves): para. 74. In that context, he discussed the arbitral  
recognition of a “spectrum” of invasiveness or intrusion of privacy rights, and a  
hierarchy of protection affordedto these different privacy interests: the strongest form  
of employee privacy being with respect to bodily integrity; the second being searches  
involving an employee’s personal effects and spaces; and the third level relating to  
surveillance, within which there was a range from overt surveillance to covert or  
surreptitious surveillance: paras. 83-86.  
190  
In Kadant, the union argued there was no meaningful distinction between covert  
and overt surveillance for the purposes of the reasonableness analysis. It argued that a  
stricter standard should apply to both types of surveillance, including that the employer  
demonstrate there is a substantial problem and that it has exhausted all available  
alternatives. Arbitrator Lanyon rejected these arguments, and held:  
I affirm the arbitral distinction between overt and covert  
surveillance, and I find the right to privacy remains the same in  
both circumstances; that is an employees right to privacy is  
balanced with the employers right to manage and protect its  
workplace. That standard is clear in both the arbitral jurisprudence  
and in the legislative scheme. However, I find that covert  
surveillance is a more egregious violation of privacy because it is  
capable of causing more distress, anguish and embarrassment.  
- 45 -  
This is because privacy is an integral part of a persons  
psychological integrity and personal identity. Accordingly, covert  
surveillance requires a higher standard of reasonableness because  
it is highly offensive to the reasonable person. (para. 92, emphasis  
added)  
191  
On the evidence before him, Arbitrator Lanyon found that the employer had  
demonstrated sufficient past incidents of safety violations to justify the installation of the  
cameras. However, he also held that, within the context of determining the  
reasonableness of the exercise of management rights, there was no requirement for an  
employer to demonstrate a past history of serious safety breaches or of security issues  
prior to implementing preventative measures such as overt cameras for the purposes of  
safety and security: paras. 100-102.  
192  
Arbitrator Lanyon stated the following conclusions regarding the applicable legal  
test for overt surveillance:  
I conclude that the applicable legal test is whether the installation of  
overt surveillance is a reasonable exercise of management rights.  
The test established for covert surveillance does not apply. This is  
not a new or different approach. Within the assessment of whether  
management rights have been exercised reasonably, which is a  
less stringent standard than that required for covert surveillance,  
the following factors may be considered:  
a. whether the concern for safety and/or security is bona fide  
(recognizing there will be a subjective element of whether a  
concern exists; and, an objective element which relates to  
the circumstances of the workplace, but which does not  
require evidence of a historical problem of security or  
safety);  
b. whether there is a direct link or nexus between the  
installation of cameras and the issue of safety and/or  
security (i.e. whether or not there is evidence that the  
installation was for reasons other than safety or security);  
c. whether the surveillance has been implemented and utilized  
in a reasonable manner (e.g. the number of cameras, place  
of installation, use of footage, etc.);  
d. whether there are other reasonable alternatives; and  
e. any other relevant circumstances in the context of the  
specific case.  
These are not new or additional factors. More precisely, within the  
existing arbitral test of reasonableness, past security or safety  
infractions are not a pre-requisite to the implementation of overt  
surveillance. Rather, what is required, both subjectively and  
- 46 -  
objectively, is the reasonable installation and utilization of overt  
camera surveillance that addresses safety and security concerns.  
"Reasonableness", therefore, is about prevention or addressing an  
identified safety and/or security concern; it is not a "penalty" for  
past safety and/or security infractions. It is about the present, not  
the past. (paras. 103-104, emphasis added)  
193  
Applying this approach, Arbitrator Lanyon concluded that the installation of overt  
cameras was a reasonable exercise of the employers management rights, and  
dismissed the grievance. In particular, he found the employer raised bona fide safety  
and security concerns, and there was a direct link between the installation of the  
cameras and those concerns. He found the surveillance was implemented reasonably,  
given: the number and configuration of cameras; the restricted access to video  
recordings, which were erased every two weeks; and there was no real time monitoring.  
He also rejected the argument that an employer must have exhausted all other  
reasonable alternatives, stating that the requirement of examining alternatives is not a  
prerequisite, but a factor in assessing reasonableness. In that regard, he rejected the  
use of additional supervisors as an alternative, given the associated cost: paras. 105-  
111.  
194  
195  
The analysis in Kadant has been adopted in subsequent arbitral decisions in BC:  
e.g., Armtec Limited Partnership v. CSWU Local 1611 (Video Surveillance Grievance),  
[2016] B.C.C.A.A.A. No. 90 (Hall); Lafarge Canada Inc. v. Teamsters, Local Union No.  
213 (In-cab Camera Grievance), [2018] B.C.C.A.A.A. No. 51 (Saunders) (Lafarge).  
In Lafarge, the union grieved the employers introduction of in-cab cameras in  
cement trucks as an unreasonable intrusion of driversprivacy. The employer submitted  
the cameras were an essential part of a technology system introduced for bona fide  
purposes including safety, asset protection, productivity and efficiency, and  
investigations of driving incidents: para. 2.  
196  
After reviewing the case law, Arbitrator Saunders adopted the approach in  
Kadant. In doing so, he rejected the unions argument that Irving imposed a blanket  
requirement in all cases that the employer establish a demonstrated safety problem:  
[I]t was concluded [in Irving] that an intrusion amounting to a  
loss of liberty and personal autonomycan only be justified by  
negotiated provisions or by a compelling countervailing interest,  
such as a demonstrated problem that cannot be adequately  
addressed by less invasive means. A corresponding level of  
intrusion is not present on the facts of the present case.  
Accordingly, I do not find that Irving posits a dangers workplace  
and demonstrated safety problem as prerequisites in all cases  
safety is invoked to justify privacy intrusions, much less the  
intrusion imposed by overt video surveillance. Rather, the  
existence of safety infractions or the risk of accidents, remain to be  
factored in the proportionality assessment the more serious the  
- 47 -  
intrusion, the more compelling the justification required. I add that  
even in the highly intrusive context of drug and alcohol testing, the  
Supreme Court endorsed arbitral approval of testing after near  
misses. It is instructive that an actual accident is not required to  
find a compelling interest to support drug testing when investigating  
safety-related incidents. That pronouncement accords with  
arbitrator Lanyons formulation of the first factor in Kadant,  
requiring the presence of a bona fide security or safety concern to  
justify overt surveillance – “recognizing there will be a subjective  
element of whether a concern exists; and an objective element  
which relates to the circumstances of the workplace, but which  
does not require evidence of a historical problem of security or  
safety: Kadant, para. 103.  
(paras. 106-107, emphasis added)  
197  
198  
Arbitrator Saunders concluded that the level of justification required to uphold  
the extreme privacy intrusion occasioned by random drug and alcohol testing cannot be  
equated to that required to sustain overt video surveillance as a method of accident  
investigation and prevention(para. 108).  
Applying the Kadant factors, Arbitrator Saunders found the use of the in-cab  
cameras was a reasonable exercise of management rights. He found the employers  
stated purposes for introducing the cameras were bona fide. He also found that there  
was a direct link between the installation of the in-cab cameras not only with respect to  
safety purposes, but also with the other concerns raised by the employer:  
The in-cab camera depicts driver behaviour that is unavailable from  
the exterior cameras or which can only be inferred from recordings  
taken by the exterior cameras. Relevant behaviour includes  
maintaining situational awareness, mirror checking, forms of  
distracted driving and the use of seat belts. Bergman correctly  
conceded that if there is an incident due to driver complacency  
such as a failure to check mirrors, the only way to confirm the  
driver's behaviour is by the in-cab camera. The exterior camera  
only shows what the truck and other vehicles are doing. Also,  
determining driver behaviour is an integral part of an accident  
investigation as it identifies or rules out all contributing causes. The  
in-cab camera may also exonerate drivers regarding false claims of  
distracted driving. Most important from the standpoint of accident  
prevention, the depiction of driver behaviour associated with an  
event recording is used as a training tool. It is used to coach the  
driver, and the lessons learned passed to Driver Trainers for use in  
their ride-alongs with other drivers. It may also be used to  
commend drivers as a form of positive reinforcement. This  
information further assists with training the new hires. To that  
extent, the in-cab camera is connected to advancing the  
productivity and efficiency of the training program.  
- 48 -  
For these reasons, I find a sufficient nexus between the in-cab  
camera and training for skills improvement and accident  
prevention, accident investigation and driver exoneration. (paras.  
124-125)  
199  
Arbitrator Saunders held that the surveillance had been implemented and utilized  
in a reasonable manner, where: recordings were only viewed in response to a triggering  
event or for reasonable cause; real-time surveillance was not available; recordings were  
securely transmitted; and clips were retained only for the time necessary to fulfill the  
stated purposes: para. 127. He also accepted that there were no reasonable  
alternatives for achieving the employers objectives.  
200  
I turn now to the case before me. This case involves overt monitoring, and  
primarily, the use of Proximity Information to determine whether an employee is within  
the geofence during working hours and during time for which the employee is claiming  
to be paid. In these circumstances, and based on the case law above, I find the  
applicable arbitral test is whether the collection and use of IBRT Information is a  
reasonable exercise of KONEs management rights, where reasonableness is assessed  
by an objective standard. I find that the Kadant factors reflect the analysis to be applied.  
I also find that the analysis in Kadant and subsequent cases incorporates and reflects a  
balancing of interests approach, recognizing the impact on employee privacy in the  
context of overt surveillance, while also balancing those interests with the employers  
right to manage the workplace and address safety, attendance, or other workplace  
issues.  
201  
The Union argues that the analysis in Kadant related only to security and safety  
risks, which are not the primary interests advanced by KONE in this case, and therefore  
has no application here. The analysis in Kadant was applied in Lafarge where the  
employers stated purposes for the camera surveillance included not only safety, but  
also productivity and efficiency, and investigation of driver incidents. Therefore, there is  
arbitral precedent for the application of the Kadant factors beyond safety and security. I  
also note that the Union did not cite any arbitral case law from BC involving overt  
surveillance where the Irving approach was applied.  
202  
203  
For the reasons set out below, I find that, in all the circumstances, the  
introduction of IBRT 2.0 (and more particularly the use of the IBRT Information for the  
IBRT Purposes) and the GPS Systems Policy are a reasonable exercise of KONEs  
management rights.  
First, and for reasons already set out in the previous section, I find that the IBRT  
Purposes represent bona fide objectives and concerns. In this regard, in light of:  
KONEs concerns regarding the honour systeminvolved with IBRT 1.0; the inability to  
verify accurate time entry and proper attendance through IBRT 1.0; the challenges  
associated with direct observation by supervisors given the nature and realities of the  
workplace; and the evidence put before me establishing the existence of attendance  
problems, I find the subjective and objective elements of bona fide concerns regarding  
attendance and accurate time keeping are satisfied. I want to be clear here that while I  
- 49 -  
have found the analysis in Kadant to be the most applicable and instructive, I note that  
the evidence before me on this point is much more compelling than that in some of the  
cases cited by the Union, e.g., Corporation of the City of Woodstock and Woodstock  
Professional Firefighters Association, 2015 20641 (Parmar), paras. 54-61. In my  
view, the rest of the cases cited by the Union were factually distinguishable.  
204  
Returning to the Kadant factors, I find there is a direct link or nexus between the  
collection of the IBRT Information and the objectives of verifying proper attendance and  
accurate timekeeping and invoicing. My findings regarding the effectiveness of IBRT 2.0  
as a measure for verifying employee attendance and accurate time keeping and  
customer invoicing are already set out above, and I rely upon them here. I also repeat  
there is no evidence that the IBRT Information is being used for purposes other than  
those stated by KONE.  
205  
Third, I find the monitoring through IBRT 2.0 has been implemented and utilized  
in a reasonable manner. As discussed, the Proximity Information is only available 24  
hours later, and after an employee requests pay for the time in question; there is no  
real-time monitoring except for the roll call function; there is no continuous monitoring;  
there are limits on managerial access to the IBRT Information; and there was  
substantive advance training on IBRT 2.0. In addition, and importantly, the evidence  
was that the IBRT Information only serves as one tool in the investigation process in the  
event there is some discrepancy between the Proximity or IFP Information, and the time  
entered by the employee. I accept KONEs evidence that it would not discipline an  
employee on the basis of the IBRT Information alone.  
206  
For reasons already given in the previous section, I also find there are no  
reasonable alternatives available that would be less intrusive and would allow KONE to  
achieve the same bona fide purposes. In this regard, I note that even the cases cited by  
the Union recognize that an employer is not required to exhaust available alternatives  
without regard to their reasonableness: e.g. Ontario Public Service Employees Union v.  
Ontario (Ministry of the Attorney Solicitor General), [2021] O.G.S.B.A. No. 160  
(Anderson) (OPSEU) para. 59.  
207  
I agree with the Union that on the spectrum of legitimate employer business  
objectives and interests, arbitrators have recognized that safety and security generally  
rank higher than managing or monitoring performance: e.g., OPSEU para. 70. However,  
I must balance against that the fact that the intrusion into employee privacy in this case  
is similarly on the lower end of the spectrum of employee privacy interests. Whether an  
employee is on the job site, proximate to the Perimeter and within the geofence, during  
paid hours of work, is not particularly sensitive information over which an employee  
should expect a high degree of privacy. This is particularly so where the information is  
collected through overt means, there is not continuous monitoring, and the employee  
cannot be located in real-time.  
208  
I agree that working under any level of technology-based surveillance would be  
uncomfortable for many employees. However, the legal question at hand requires a  
balancing of interests, and whether the impact on employee privacy interests outweighs  
- 50 -  
KONEs legitimate interests and objectives in the case. In all the circumstances, I find  
the introduction and implementation of IBRT 2.0, as well as the associated policies,  
constitute a reasonable exercise of KONEs management rights.  
209  
I also find the remaining KVP requirements are met in this case. I find that IBRT  
2.0 and the GPS Systems Policy were brought to the attention of the affected  
employees before they were implemented, and that KONE provided adequate advance  
training to employees in that regard. The Union did not assert that the GPS Systems  
Policy has not been consistently enforced.  
210  
Before concluding this Award, I note there was some evidence from Mr. Tominac  
that, in drafting the applicable policies, KONE utilized resources available from KONE  
Americas. That appears to have had some impact on the wording used in the policies  
set out above. I urge KONE to review the policies, as well as screen prompts on the  
Devices, to ensure they accurately reflect collection and use of the IBRT Information in  
Canada, so as not to unnecessarily raise questions or concerns.  
VI.  
CONCLUSION  
1
I order KONE to notify the Union of the information that is collected and used by  
the HUB application within 30 days of the date of this Award. In all other respects, and  
for the reasons given, the Grievance is dismissed.  
DATED this 14th day of January, 2022, in the District of North Vancouver, BC.  
KOML KANDOLA”  
________________________  
Koml Kandola  
Arbitrator  



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