Houston We’ve Had a Problem

I read this case concerning shared iphone accounts and it is, on a number of levels, troubling:

Source: 2019 CanLII 104260 (BC LA) | CanLII

Who knew that this much intrigue could take place in a town that claims to have the world’s largest fly fishing rod.

The grievor serviced the district water system (all 73 square km’s of it). Four female co-workers working out in the field were uncomfortable with the grievor’s presence and “felt” that it was odd that he would park his car in proximity to where they worked and then used his phone. A complaint was made that the grievor was making his co-workers feel uncomfortable and that he might be taking pics of them.

The worker had an employer supplied iphone that was setup using employee apple accounts. Employees were allowed to use the iphone for personal matters. So far so good. The employer demanded to search the phone in the employee’s absence. And here’s where it goes sideways.

The iphone was setup on the employee’s wife’s apple account. She found out about the search request and wiped the iphone clean. The employee was terminated for insubordination because his wife refused to give the employer access to the iphone account and backup materials.

The termination was overturned on the basis that:

a. there was evidence that the employee had spied on co-workers.

b. the phone was in the employee’s wife’s name, had been used in conformity with policy and that a suspension without pay was sufficient punishment.

This case raises a few interesting points:

  1. Don’t spy on your co-workers even when you are in the open doing your job. I raise this in a facetious tone because I’m not sure what “spying” on a co-worker would entail short of some form of surreptitious activity or overt recording transgression.
  2. Blended account devices. I can’t advise this for an employer or an employee. Invariably personal information ends up on the device, inadvertently or otherwise, and that has to be dealt with.
  3. Other problems arise such a tracking employee whereabouts using the employee’s property.
  4. In this case does the privilege between married individuals apply to prevent release of the wife’s information on the husband’s phone? Depending on the nature of the materials on the phone.
  5. Depending on where the employer took the matter, or the co-workers did, such as a stalking complaint, do you attract the kinds of issues that arise in charter cases and Jarvis and Ling scenarios, all involving the added complication of personal cloud and device accounts.