An Ontario Judge recently ruled that an employer who secretly installed a hidden camera in an employee’s office without her knowledge and without a plausible explanation had constructively dismissed the employee. This is the first case in Ontario where a judge ruled that an employer was liable for constructive dismissal of an employee based on a privacy violation.
The case, Colwell v. Cornerstone Properties Inc. 2008 CanLII 66139 (ON S.C.) involved a commercial manager (“Ms. Colwell”) who learned that a hidden camera was installed in her office by her immediate boss at Cornerstone Properties Inc., (“Cornerstone”). Ms. Colwell found out about the existence of the camera when she saw the image of her office on a monitor in the presence of her immediate boss and the vice-president of Cornerstone.
Ms. Colwell confronted her immediate boss, who indicated to her that the camera had been installed approximately nine months prior to her being aware of its existence. He also indicated to her that she was not considered to be involved in any alleged thefts – either as a victim or a suspect. The camera, she was told, was to assist in detecting theft by the maintenance staff. However, even though Ms. Colwell was the person directly responsible for the maintenance staff, she was never advised of any thefts or the camera set up to capture them. The camera in her office was the only hidden camera installed in Cornerstone’s office area, yet there was no plausible explanation given as to why her office was thought to be most likely the subject of a theft.
It was unclear to the trial judge why the only camera installed was in her office, without her knowledge. The judge stated in his reasons, “A secret camera installed in a trusted manager’s office without her knowledge, although perhaps acceptable employer conduct in itself, coupled with a totally implausible explanation, renders the actions unacceptable.” The judge found that Ms. Colwell’s contract of employment contained an implied term of good faith and fair dealing, throughout the existence of the contract, which was breached by the actions of her employer. As such, the judge held that Ms. Colwell was constructively dismissed and was accordingly justified in leaving her position at Cornerstone. She was ultimately awarded seven months pay in lieu of notice (she had been employed by Cornerstone for in excess of seven years).
As a result of her treatment at Cornerstone and the stress related medical issues that flowed from it, she was not obligated to continue her employment with Cornerstone to mitigate her damages, as the work atmosphere was no longer conducive to a healthy working relationship.
Despite the trial judge’s distain for Ms. Colwell’s treatment at Cornerstone prior to her departure, he found that her immediate boss’ actions were not sufficiently egregious so as to warrant punitive or aggravated (moral) damages.
What does this mean for employers?
- While there continues to be no privacy legislation which addresses an employee’s privacy rights in the workplace, this case demonstrates that there is an implied right of privacy as a part of good faith and fair dealing in an employment contract.
- Surveillance cameras which are set up without employees’ knowledge and without plausible explanation may amount to constructive dismissal, especially if cameras are set up for a direct view into an employee’s office.
- Even if an employer has a plausible explanation (e.g., a need to investigate inappropriate activity), employers should consider all other less intrusive means of combating workplace issues before secretly invading employees’ privacy.