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Video surveillance: Invasion of privacy or reasonable response to misconduct?
Employers seeking to pre-empt, detect or verify wrongdoing by employees may resort to
the use of video surveillance. Such employers should bear in mind, however, that even
where the surveillance has produced reliable, relevant evidence of misconduct, that
evidence may be ruled inadmissible in subsequent proceedings. Unionized employers
should also be aware that installation of a general video surveillance system may
be ruled a violation of the collective agreement.
In this article, FOCUS will examine what the law has to say about video
surveillance in the workplace and the pitfalls associated with its use.
ADMISSIBILITY OF VIDEOTAPED EVIDENCE
As a legal issue, video surveillance is most often raised in the context
of the use of videotaped evidence to support discipline imposed on an employee,
often for abuse of sick leave. The surveillance may occur within or outside the
workplace, and may be carried out by company personnel or hired investigators. In
virtually all cases, the surveillance is clandestine.
The issue is whether the videotape obtained is admissible as evidence at
arbitration or in wrongful dismissal proceedings. It will come as little surprise
to unionized employers that most arbitrators apply a test that balances the
interests of the parties. The balancing exercise is based on the view that
employees' right to privacy is fundamental and basic, but not absolute.
Unionized workplaces
Majority view of arbitrators: video surveillance a last resort
While the prevailing approach among arbitrators to the admissibility of
videotaped evidence has its roots in earlier cases involving issues such as
employee searches and compelled drug tests, it in fact dates from two British
Columbia cases decided in the early '90s. These cases articulated a test
that balanced employees' interest in protecting their right to privacy against the
right of employers to investigate suspected misconduct.
The B.C. arbitrators' test for determining whether to admit videotaped evidence
was eventually distilled down to two questions:
- Was it reasonable, in all the circumstances, to request a surveillance?
- Was the surveillance conducted in a reasonable manner?
Many arbitrators hold that, in order to answer these questions properly, it
is usually necessary to assess all the evidence, including the videotapes,
before making a determination about admissibility.
The B.C. approach has been adopted by arbitrators across Canada. The
problem is knowing what result to expect from a particular set of facts.
In determining whether the decision to place the grievor under surveillance
was reasonable, arbitrators will look at some of the following factors:
- whether other alternatives were considered before the surveillance was
ordered, such as confronting the grievor about the alleged misconduct or, where
abuse of sick leave is suspected, offering the employee modified work;
- whether there were reasonable grounds for suspecting fraudulent conduct
by the grievor (making confronting the grievor of little value);
- the grievor's seniority;
- the grievor's disciplinary record, if any, particularly if it involves
dishonesty;
- whether the grievor was co-operative in supplying medical information
about his or her absenteeism.
The cases have less to say about the second branch of the test, the reasonableness
of the surveillance itself. The fact that a company hires an outside investigator will
not, in itself, make surveillance unreasonable. However, in one case where investigators
posed as customers, insisted that the grievor provide hang-gliding lessons and, with his
permission, videotaped one of his flights, the arbitrator ruled that the employer had
acted unreasonably. The arbitrator held that, once the employer had evidence that the
grievor had agreed to supply the lessons, it should have confronted him with his abuse of
sick leave rather than resorting to such intrusive measures.
Minority view of arbitrators: relevant evidence should be admitted
Despite the growing arbitral consensus that the admission of surreptitiously
videotaped evidence requires a balancing exercise subject to the two-part test described
above, at least one prominent arbitrator has taken a position at odds with this approach.
In Re Kimberly-Clarke Inc. and IWA-Canada, Local 1-92-4, a 1996 decision, Arbitrator
Bendel expressed the view that, while arbitrators do have the power to exclude evidence
that would be admissible in court, they should be extremely reluctant to do so. Pointing
out that the common law traditionally did not bar the admission of even illegally acquired
relevant evidence, the arbitrator held that relevant and reliable evidence should be
admitted.
Non-unionized workplaces
The decision in Kimberly-Clarke is more in line with the view taken
by courts on the admissibility of videotaped evidence in non-unionized contexts
than with arbitral case law. The judicial approach is reflected in the 1997 decision
of the British Columbia Supreme Court in Richardson v. Davis Wire Industries Ltd.,
which we reported in the January 1998 issue of FOCUS
(See "Videotaped evidence and employee privacy rights"
on our Publications page.) This was a wrongful dismissal action involving a
production foreman with 20 years of service who was terminated after having
been caught sleeping on the job and lying about it.
The employer investigated reports that Richardson was sleeping by having
him placed under surreptitious video surveillance. No attempt was made to
confront him with the allegations before installing the video camera.
At trial, Richardson's lawyer sought to bar the admission into evidence of
the videotape, on the grounds that the surveillance was an invasion of privacy
both generally and under the province's Privacy Act, a statute which allows
a person who suffers a wilful invasion of privacy to sue in court.
Richardson's counsel urged the court to apply the same tests as those used by arbitrators
to determine whether the evidence was admissible.
The judge disagreed, holding that evidence which is relevant and is not
excluded by any other rule of evidence should be admitted. In this case, the
tapes were clearly relevant.
Turning to the arguments based on privacy, the judge stated that Richardson
could have had no reasonable expectation of privacy, given that he was sleeping
on company time, on company property, in circumstances where he could expect to
be contacted if he were needed. Further, the judge held, even if Richardson had
a reasonable expectation of privacy, the Privacy Act provided only for a
right to sue. It did not prohibit the admission of evidence gathered contrary
to the Act.
The judge did go on to express regret that the employer had chosen the route
of clandestine surveillance rather than confronting Richardson about the allegations.
She stated that using this method to catch an employee engaged in wrongdoing which,
by itself, did not warrant summary dismissal jeopardizes the trust that is a key
element of the employment relationship.
GENERAL SURVEILLANCE
Apart from the issue of the admissibility of video surveillance evidence, arbitrators
have had to consider whether video surveillance is an acceptable management tool. Here
again, in the absence of a clear answer in the collective agreement, the main approach
has been to balance the interests of the parties.
With general surveillance, the concern is not as much about the surreptitious
nature of the surveillance as its pervasiveness and intrusiveness. This can be
seen in following extract from Re Puretex Knitting Co. Ltd. and Canadian Textile
and Chemical Union (May 29, 1979), one of the leading Canadian cases:
"The full-time use of closed-circuit television systems for constant observation of the work performance and conduct of employees in an industrial setting would be widely regarded, I believe, as seriously offensive in human terms. ... [I]t is difficult to conceive of circumstances in which considerations of efficiency would justify such an affront to human dignity, although even so, perhaps it is not impossible to do so."
The arbitrator went on to observe that even constant surveillance may be
acceptable to deal with a massive and intractable security problem, provided
assurances are given that it will not be used for other purposes such as monitoring
work performance.
Taking the view that workplace monitoring of employees is inherently objectionable,
the arbitrator noted that the degree to which it is objectionable depends on a variety of
factors:
"[T]he degree of objection [depends] on the way the cameras are deployed and
the purpose for which they are used and [ranges] from unacceptable in the
case of constant surveillance of conduct and work performance to probably
non-objectionable in the case of short-term individual application for
training purposes."
In Our View
Employers are advised to look on video surveillance as a last resort and,
if it is used, to make it as unintrusive as possible under the circumstances. The
problem is not only a legal one: even employers not bound by collective agreements
should consider the effect on employee morale of a surveillance system that is out
of proportion to justifiable need.
For further information, please contact Carole Piette
at (613) 563-7660, Extension 227, or
Colleen Dunlop
at (613) 563-7660, Extension 222.
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