But union loses case of employee feigning illness
Now that the federal privacy law is in effect to govern the collecting and use of information of employees, does it protect employees from being videotaped outside the workplace by employers?
The issue was tested at arbitration in a case involving a Securicor employee. In his job servicing bank machines, Ravi Mehta handled large amounts of cash. His employer, Securicor Cash Services, suspected much of it was disappearing into his own pockets. Consequently, they had Harold Wax, a security investigator, look into the losses.
After an interview in which Wax informed Mehta that he was a suspect, Mehta booked off sick. When he failed to show up to work for a second day in a row, Wax feared he was planning a getaway or getting rid of large-ticket items bought with the allegedly stolen cash. The investigator drove to Mehta’s home, observed various people entering and leaving his house and saw Mehta on the street. Wax had his video camera with him and decided to tape what he saw.
The employer later wanted to enter these tapes as evidence at an arbitration hearing on the termination of Mehta, who was dismissed on the grounds that he abused his sick leave. Mehta’s union, Teamsters Local 419, contended that the evidence was an invasion of Mehta’s privacy and should not be allowed. Securicor maintained that since the surveillance took place in a public venue, Mehta couldn’t expect privacy. In addition Securicor argued that if the evidence was relevant, it was admissible.
The issue before the arbitrator was whether Mehta had a right to privacy. If yes, the arbitrator then had to determine whether to exclude the video evidence, even though that evidence was relevant and probative to the case.
For authority on privacy right protection, the arbitrator looked to four potential sources: The Charter of Rights and Freedoms, the Personal Information Protection and Electronic Documents Act (PIPEDA), common law, as well as the collective agreement.
The charter, both sides agreed, was not relevant to resolving the issue as it does not specifically guarantee a right to privacy. As for common law, the arbitrator said there is some recognition by the courts of a common law right to privacy, but he cautioned that an expectation of privacy is not the same as a right to it.
PIPEDA, on which the union based its case, does apply to the collective bargaining relationship, both parties also agreed. As a federally regulated industry, Securicor falls under PIPEDA, which governs privacy issues arising in the federal sector.
In looking at the provisions of PIPEDA, the arbitrator referred to a list of questions which the Privacy Commissioner of Canada said must be asked to determine reasonableness:
•Is the measure demonstrably necessary to meet a specific need?
•Is it likely to be effective in meeting that need?
•Is the loss of privacy proportional to the benefit gained?
•Is there a less invasive way of achieving the same end?
Video surveillance, the arbitrator determined, qualifies as collection of personal information under PIPEDA, which “in turn means that there is at a minimum, a statutory prohibition against employee surveillance which is not ‘reasonable.’”
In other words, without any business justification, it would be unreasonable for an employer to permanently station a camera outside a worker’s home.
“It may very well be that where an employer has a legitimate need to collect information about an employee, there is greatly reduced expectation of employee privacy in a a public place and such surveillance will be reasonable.”
To determine what’s reasonable, the arbitrator referred to arbitral jurisprudence on the issue.
He noted that even if nothing is said overtly in the collective agreement, the test of reasonableness applies in determining the degree to which an employer may infringe on the privacy rights of its employees in order to run its business. The arbitrator maintained that video surveillance was analogous to other “intrusive inquiries into the private realm of the employee,” for example, a physical search, a drug or alcohol test, a medical exam or a search of an employee’s locker or coverall pockets.
What the issue boiled down to was whether the employer’s reason for wanting the information, and the methods it used to get it, justified its intrusion into the employee’s private life. In this particular case, the arbitrator decided it did.
For one thing, the employer was investigating thefts of large amounts of money. For another, Mehta immediately missed two shifts once he was told he was a suspect. Third, the investigator made the decision to videotape once he got to the employee’s residence and saw the employee, who was apparently too sick to attend work, out on the street. He didn’t go there on a fishing expedition. At that point in time, there were no other less invasive ways to obtain the information. The surveillance occurred only once and lasted for only a short time. Finally, Mehta was taped in a public place in front of his home so his expectation of privacy could not be high.
For all these reasons the arbitrator concluded that the employer’s actions were not contrary to the collective agreement and that the evidence was reasonably obtained. He allowed the video evidence.
For more information: Teamsters Local Union 419 and Securicor Cash Services, Ontario Labour Code Arbitration, Kevin Whitaker – Sole Arbitrator, Feb. 6, 2004.
Decision update
In December 2002, I wrote about an arbitration decision denying severance to a nurse whose employment contract was nullified due to long-term disability. The decision has been overturned. For more visit click on the related articles link below.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext.2617 or [email protected].
The issue was tested at arbitration in a case involving a Securicor employee. In his job servicing bank machines, Ravi Mehta handled large amounts of cash. His employer, Securicor Cash Services, suspected much of it was disappearing into his own pockets. Consequently, they had Harold Wax, a security investigator, look into the losses.
After an interview in which Wax informed Mehta that he was a suspect, Mehta booked off sick. When he failed to show up to work for a second day in a row, Wax feared he was planning a getaway or getting rid of large-ticket items bought with the allegedly stolen cash. The investigator drove to Mehta’s home, observed various people entering and leaving his house and saw Mehta on the street. Wax had his video camera with him and decided to tape what he saw.
The employer later wanted to enter these tapes as evidence at an arbitration hearing on the termination of Mehta, who was dismissed on the grounds that he abused his sick leave. Mehta’s union, Teamsters Local 419, contended that the evidence was an invasion of Mehta’s privacy and should not be allowed. Securicor maintained that since the surveillance took place in a public venue, Mehta couldn’t expect privacy. In addition Securicor argued that if the evidence was relevant, it was admissible.
The issue before the arbitrator was whether Mehta had a right to privacy. If yes, the arbitrator then had to determine whether to exclude the video evidence, even though that evidence was relevant and probative to the case.
For authority on privacy right protection, the arbitrator looked to four potential sources: The Charter of Rights and Freedoms, the Personal Information Protection and Electronic Documents Act (PIPEDA), common law, as well as the collective agreement.
The charter, both sides agreed, was not relevant to resolving the issue as it does not specifically guarantee a right to privacy. As for common law, the arbitrator said there is some recognition by the courts of a common law right to privacy, but he cautioned that an expectation of privacy is not the same as a right to it.
PIPEDA, on which the union based its case, does apply to the collective bargaining relationship, both parties also agreed. As a federally regulated industry, Securicor falls under PIPEDA, which governs privacy issues arising in the federal sector.
In looking at the provisions of PIPEDA, the arbitrator referred to a list of questions which the Privacy Commissioner of Canada said must be asked to determine reasonableness:
•Is the measure demonstrably necessary to meet a specific need?
•Is it likely to be effective in meeting that need?
•Is the loss of privacy proportional to the benefit gained?
•Is there a less invasive way of achieving the same end?
Video surveillance, the arbitrator determined, qualifies as collection of personal information under PIPEDA, which “in turn means that there is at a minimum, a statutory prohibition against employee surveillance which is not ‘reasonable.’”
In other words, without any business justification, it would be unreasonable for an employer to permanently station a camera outside a worker’s home.
“It may very well be that where an employer has a legitimate need to collect information about an employee, there is greatly reduced expectation of employee privacy in a a public place and such surveillance will be reasonable.”
To determine what’s reasonable, the arbitrator referred to arbitral jurisprudence on the issue.
He noted that even if nothing is said overtly in the collective agreement, the test of reasonableness applies in determining the degree to which an employer may infringe on the privacy rights of its employees in order to run its business. The arbitrator maintained that video surveillance was analogous to other “intrusive inquiries into the private realm of the employee,” for example, a physical search, a drug or alcohol test, a medical exam or a search of an employee’s locker or coverall pockets.
What the issue boiled down to was whether the employer’s reason for wanting the information, and the methods it used to get it, justified its intrusion into the employee’s private life. In this particular case, the arbitrator decided it did.
For one thing, the employer was investigating thefts of large amounts of money. For another, Mehta immediately missed two shifts once he was told he was a suspect. Third, the investigator made the decision to videotape once he got to the employee’s residence and saw the employee, who was apparently too sick to attend work, out on the street. He didn’t go there on a fishing expedition. At that point in time, there were no other less invasive ways to obtain the information. The surveillance occurred only once and lasted for only a short time. Finally, Mehta was taped in a public place in front of his home so his expectation of privacy could not be high.
For all these reasons the arbitrator concluded that the employer’s actions were not contrary to the collective agreement and that the evidence was reasonably obtained. He allowed the video evidence.
For more information: Teamsters Local Union 419 and Securicor Cash Services, Ontario Labour Code Arbitration, Kevin Whitaker – Sole Arbitrator, Feb. 6, 2004.
Decision update
In December 2002, I wrote about an arbitration decision denying severance to a nurse whose employment contract was nullified due to long-term disability. The decision has been overturned. For more visit click on the related articles link below.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext.2617 or [email protected].
