This article first appeared in French in the June 2016 edition of Vigiexpress, a publication of the Quebec Association of Certified Human Resources Professionals.
The purpose of this article is to expose how video-camera surveillance can be an effective tool for employers who want to visually monitor their employees. Under which circumstances can it be used? What are the limits on its use?
For many employers, installing video surveillance cameras has proven to be an effective mean to ensure the security of employees and property in the workplace. However, this practice gives rise to several questions. Employers may ask themselves if such cameras can be legitimately installed in their premises, and employees, on the other hand, may fear constant monitoring.
This article will first provide an overview of the law in Quebec regarding the use of surveillance cameras in the workplace. We will then analyze the recent arbitration decision in Aliments Multibar Inc. et Unifor, section locale 6981, in order to illustrate how the criteria used by courts are applied in assessing the legality of installing surveillance cameras.
First, it should be noted that courts and arbitration tribunals have generally recognized that employees have a reduced expectation of privacy in the workplace, with certain exceptions (washrooms, break rooms, lockers, etc.) and that it is from the standpoint of what constitutes fair and reasonable working conditions that the use of such cameras by the employer must be analyzed. In other words, it is the balance between protecting the interests of the employer and respecting the privacy rights of employees that frames the law regarding video surveillance in the workplace.
As a general rule, constant video surveillance of employees in the workplace is an infringement of their rights under section 46 of Quebec’s Charter of Human Rights and Freedoms (the “Charter”) which provides as follows:
Every person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well-being.
Video surveillance may be compatible with the Charter where it is carried out for a legitimate reason and by reasonable means, such that employees’ rights are infringed to the least extent possible. More specifically, video surveillance will be permitted if the following criteria are met:
- it is based on serious and concrete grounds;
- it allows to solve a problem that other investigative means have been unable to elucidate, and
- it is as non-intrusive as possible.
Consequently, employers wishing to use such a mean of surveillance must be able to show that installing video cameras is a minimal infringement on the employees’ right to fair and reasonable conditions of employment. For example, a camera permanently pointed at a precise work station was deemed an unjust infringement of an employee’s rights.
Determining whether there is a valid reason for the surveillance depends on the specific circumstances and must be based on objective facts. A valid ground in one specific situation is defined as follows in the decision Hydro-Québec2 [TRANSLATION]:
In my view, an employer has a real and serious ground for conducting surveillance by means of a hidden camera if it has a legitimate fear, based on objective facts, that an employee is breaching one of the fundamental obligations under the employment contract. The facts prompting the surveillance must therefore call into question the employee’s duty of prudence, diligence and loyalty.
The case law provides that surveillance may be justified in certain circumstances. For example, courts have recognized that repeated occurrence of theft, fraud and vandalism are sufficient grounds for the installing of cameras by the employer.
On the other hand, surveillance of expensive machinery, the desire to protect employees without demonstrating that their safety is at risk, and the intent to dissuade employees from engaging in reprehensible conduct have been deemed insufficient grounds for installing video cameras.
The case of Aliments Multibar Inc. and Unifor, section locale 698
In this matter, the employer had experienced several incidents of vandalism in the electrical mechanics’ workshop. These specific employees were engaged in machining, welding and maintenance. However, they spent relatively little time in the workshop, as they were often out on the production line fixing problems or working on machinery. While they were monitored by three supervisors, the latter did not work on weekends.
The acts of vandalism included damage to chairs, a mobile phone, a refrigerator door and several dishes. Photographs also showed punctures in the walls. Finally, the lock on the door of the supervisors’ office had been forced open one weekend.
Following these incidents, the employer conducted an investigation to identify those responsible, but without success.
The employer ultimately installed a surveillance camera to eliminate the problem. The camera could not take close-up views or track any specific employee. The images taken by the camera were kept for only a few days and were in the sole possession of the head of the engineering department and the building manager.
The union filed a grievance requesting that the camera be removed, citing an infringement of the employees’ rights and freedoms.
The arbitrator performed a three-step analysis to determine if the surveillance was justified. First, he indicated that the employer had established that it had a serious reason for installing the camera, as the evidence showed the extent of the damage caused by the acts of vandalism, and the case law recognizes that protecting the employer’s property is a serious and concrete ground justifying the installation of a surveillance system.
Further, the arbitrator considered the other possibilities available to the employer for uncovering the source of the problem. He pointed out that the employer had unsuccessfully conducted investigations to discover the source. The arbitrator also noted that the camera had been installed with the full knowledge of all the employees.
Finally, the arbitrator emphasized that the intrusion was minimal, as the camera could not track the movements of individual employees or zoom in on any individual. He also noted that access to the video recording was limited to a very few people and that the images were only being kept for a few days.
He completed his analysis by noting that the employees were not under constant surveillance, as most of their work was performed outside the workshop. His conclusion was as follows [TRANSLATION]:
The employees are not under constant surveillance, and when they are under surveillance, it is minimal in nature, does not violate their personal dignity and is thus not an unreasonable condition of employment3.
Accordingly, the grievance was dismissed and the surveillance system was allowed to remain in place.
In this particular instance, the acts of vandalism were recurrent and rather serious. However, while protection of the employer’s property can justify the installation of a surveillance system, a single isolated act of vandalism will not necessarily constitute sufficient grounds for conducting video surveillance.
Moreover, the decision in Aliments Multibar Inc. places particular importance on the internal investigation that was carried out before the camera was installed. The arbitrator considered this to be an essential precondition for its installation. The courts are unanimous in holding that the employer must have attempted to resolve the problem by other investigative means that proved to be insufficient.
Ultimately, video surveillance in the workplace is an exceptional measure whose legitimacy is to be determined on a case-by-case basis. An employer who wishes to implement this measure must be able to establish serious grounds for doing so and that the surveillance is being conducted in a reasonable manner. Courts will weigh several factors, including the location of the camera and the area it covers, the duration of the surveillance, who has access to the recording, and the purposes for which the recording is used. In the final analysis, it comes down to balancing the interests of the employer and the rights of the employees.