In a recent case, an employer installed video surveillance in his office in order to catch employees rifling through his private filing cabinet. However, what was actually caught on tape was two employees doing something entirely different. This raised the question of whether the employer could use the footage as evidence to terminate the employees for just cause. An arbitration board's interim decision in Vernon Professional Firefighter's Association, IAFF, Local 1517 and The Corporation of the City of Vernon said yes.

Facts

In September 2017 the City of Vernon's interim fire chief entered his office and found his filing cabinet unlocked. The chief usually locked the filing cabinet because it contained confidential and sensitive information.

There had been issues in the past with the workplace culture at the Vernon fire station. However, the new chief wanted to foster a culture of openness, so he kept his office door open at all times, with only sensitive information locked away.

In order to catch the individual going through his cabinet in the future, the chief secretly installed video surveillance equipment. At the end of each day, the chief locked his filing cabinet and switched on the surveillance camera. The next day, he would review and delete the footage. This routine continued into March 2018.

However, during a routine review of one weekend's surveillance video, the chief discovered two employees engaging in sexual relations in his office on the Sunday morning. The two employees were interviewed on the Monday and dismissed on the Tuesday. The surveillance camera in the chief's office was removed two weeks later and deadbolts and keypads were installed on the chief's office door.

Decision

The two employees challenged their terminations. The three-person arbitration board had to make an interim ruling as to whether the video footage of the two employees' sexual act was admissible as evidence of workplace misconduct.

The Vernon Professional Firefighters' Association argued that the video surveillance was not an authorised collection of personal information under British Columbia's Freedom of Information and Protection of Privacy Act. It argued that the city had unreasonably invaded the employees' privacy by installing surreptitious video surveillance when there had been no substantial workplace issue.

However, the city argued that there had been reasonable suspicion of serious misconduct, which had justified the limited invasion of employees' privacy when they were in the chief's office for brief periods. Catching the confidential information thief had been a legitimate objective, and there had been no other effective alternative to obtain such reliable information.

The majority of the board ruled that the video evidence was permissible under the act and admissible at arbitration. The collection of personal information indirectly (versus the direct collection of personal information) was necessary because:

  • the surveillance that had collected the information had been a reasonable exercise of managerial authority; and
  • it had been conducted in a reasonable manner.

Lessons for employers

The arbitration board identified the following factors to consider when determining whether an employer's collection of personal information through surreptitious surveillance is necessary and reasonable in the circumstances:

  • the reasons for the surveillance (the basis for the suspicion which supports the decision);
  • the efforts made to address the problem in other ways;
  • the availability of other sources of information;
  • employees' privacy expectations at the time and place of the surveillance;
  • the scope of personal information collected (ie, all employees or only employees who the employer suspects);
  • the extent of intrusion into employees' privacy (constant or intermittent); and
  • the seriousness of loss of privacy by employees captured by the surveillance.

The employer has the onus to establish that, in weighing these factors, the balance leans in favour of the employer's interests. If it does not, or the balance is even, the protection of employees' privacy prevails.

Before installing video cameras in the workplace, unionised employers should review any collective agreement provisions relating to video surveillance in the workplace. They should also consider applicable privacy legislation, especially if the employer is a public entity. The employer's managerial authority should be balanced against the employees' privacy interests, using the above factors as a guide.

For further information on this topic please contact Alyssa LeBlanc at Fasken by telephone (+1 416 366 8381) or email (aleblanc@fasken.com). The Fasken website can be accessed at www.fasken.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.