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Grievance Over Move to Cloud-Based Email Dismissed
Legal Affairs - Workplace Today®

An Ontario arbitrator has dismissed a grievance from faculty at a university that claimed the employer’s move to use cloud-based email violated their privacy and academic freedom.

The university’s in-house email system was performing poorly. It migrated its email to Gmail, which had unlimited storage and better security than the in-house system. It also had no hardware or licensing fees, as opposed to a $50,000 estimate the university received for a new in-house system.

The university discussed the move with the faculty association, which opposed it. The university went ahead and switched to Gmail.

The faculty association grieved, saying that going ahead without faculty approval violated the collective agreement by modifying working conditions. It also argued that Gmail exposed members’ messages to surveillance by the United States government, which violated members’ privacy and limited their right to academic freedom.

The collective agreement has strong provisions protecting academic freedom. One clause states: “Academic freedom includes the right, without restriction by prescribed doctrine, to freedom in teaching, freedom in research and scholarship including the right to disseminate and publish the results thereof; freedom to produce and perform creative works; freedom to acquire, preserve, and provide access to document material in all formats; freedom to participate in professional and representative academic bodies; freedom to engage in service to the institution and the community; and freedom to express one’s opinion about the University, its administration, and the system in which one works.”

The grievance sought a return to a Canadian-based email system and that members be “made whole for any losses suffered as a result of the Administration’s failure implement a patch to the former system and the impact the new system would have on the members’ access to their documents and productivity.”

Among other things, the association had concerns about Google and Gmail being known for data mining, and it felt that its servers being based in the United States increased the privacy risks. It argued that data stored in Canada has more legal protections.

At the arbitration hearing, the faculty association argued that the university had a duty to maximize privacy protection by taking “any available measure,” including using in-house storage.

The university claimed that it was required only to take “reasonable measures” to protect privacy, and that it couldn’t expect to achieve zero risk. It argued that using Gmail did not increase the chance of U.S. government surveillance and if so, the risk was not material.

The arbitrator sided with the university, agreeing that its obligation was to take “reasonable measures,” none of which have to be specific, such as using local storage. The faculty association’s claim that the employer needs to take any available measure to protect privacy “is simply not practicable,” the arbitrator said. It also goes against the university’s rights in providing computing services, and it “ignores the express recognition of the employer right to consider its financial resources in determining the level and manner of providing such services.”

In addition, “the union did not prove that the overall threat or risk to the privacy interest of faculty members was actually worsened by the move from the former email system… to Gmail,” the arbitrator said.

The arbitrator said the university had investigated privacy matters before making the switch and had relied on the experiences of other Canadian universities that had moved to Gmail. The university had warned users that email messages weren’t any more private than a postcard, and they should use other methods of communication for sensitive information.

The arbitrator noted testimony from an email expert called by the faculty association, who said that 81% of all email sent from Canada is eventually routed through U.S. servers anyway.

Ultimately, the arbitrator said, faculty have control over what they send in email messages.

“I am of course in agreement with the association submissions on the central importance of academic freedom for faculty members to the mission of universities and their role in ensuring the proper functioning of democratic societies and systems of government,” the arbitrator wrote. “However, I am not able to find that the association has proven that the employer’s decision to opt for Gmail for faculty members has impaired their academic freedom…[W]hile there may be a university policy requiring faculty to use Gmail for corresponding with students, there was no evidence that faculty were compelled to use Gmail for correspondence regarding their research, or for the purpose of criticizing its employer or various levels of government.”

The arbitrator dismissed the grievance.

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ON: Prov. Gov’t Helps People Impacted by COVID-19 Get Back to Work

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