This news story was just so wonky, and incorporated many of the crazy things we regularly get questions about, that we had to write about it! This situation took place in Winnipeg, Manitoba. On this blog, we usually focus on Ontario law because we are in Ontario, but other than Quebec, employment law is similar across Canada so the principles discussed here would apply across the common law provinces.
Last week, the City of Winnipeg fired eight employees in its Property and Planning department. These employees were unionized, so their terminations are being challenged by their union – they may get their jobs back but they are off for now.
The terminations followed a City of Winnipeg investigation, which was prompted after an anonymous citizens’ group paid a private investigator to video city inspectors conducting personal business during their work shifts. How crazy is that?
The citizens’ group is anonymous but allegedly consists of business owners and contractors. One can only imagine how frustrated these people must have been by the hold-ups of their building inspections to take the drastic step of hiring a private investigator. But the group found what they were looking for!
17 Property and Planning employees were followed and videoed taking extended lunches and coffee breaks, doing their grocery shopping, spending hours at the gym and running personal errands, all on work time. These employees were followed by private investigators for three months before the group handed over their footage to the City.
Once the private investigator’s footage was handed over the City, the City conducted its own investigation. This investigation used more conventional workplace investigation methods, including reviewing timesheets and interviewing people.
Is That Legal?
Videoing and recording are topics that come up a lot in the workplace. If you’re in a public space, like these employees who were being followed were, then filming without sound is generally legal. There are exceptions which we won’t get into here. Surreptitious filming of someone in a place where they do have an expectation of privacy, like a bathroom or their home, is generally not legal.
Audio conversations can generally be legally recorded as long as one person who is participating in the conversation is aware that the conversation is being recorded. Secretly leaving an audio recorder in a room where you are not participating in the conversation is generally not legal.
This story raises all sorts of interesting workplace and privacy issues. Our lives are increasingly being surveilled, but using a private investigator to spy on employees is still pretty out there. This is likely not something that the City would have done on its own, but once the footage was in its hands, it had a public responsibility to act.
Supervisors have hard jobs, especially when it comes to employees working in the field – like these inspectors – and when it comes to remote workers, who could be working (or not working) anywhere. Employers need to be able to trust that their employees are actually working when they are supposed to be.
Not working on work time constitutes time theft. The employee is accepting pay for time when they were not actually working. Technology provides employers with increasingly numerous ways to keep tabs on remote employees, but the balance always needs to be struck between employee privacy and the employer’s right to manage the workforce.