Video Surveillance Evidence in Labour Arbitration

A trend is emerging towards the exclusion of video surveillance evidence against an employee except in limited circumstances. The evidence will not be admitted unless an employer can demonstrate that the decision to videotape was reasonable in all of the circumstances, and that the video surveillance was conducted reasonably. This trend is a distinct move away from the normal test for admissibility. The normal rule is that if the evidence is relevant, then it should be admitted, absent very compelling reasons not to admit. Video surveillance evidence will, in most cases, contain personal information about an employee and whether it is admissible will involve balancing an employee’s right to privacy with an employer’s business interests. An employer’s use of other technologies such as voice recognition technology will involve the same balancing process.

Developing Criteria for Admissibility of Video Surveillance Evidence

In a recent case, Sabourin v. House of Commons, the Canada Public Service Relations Board examined whether there were reasonable alternatives to video surveillance available to the employer to obtain the same evidence. The Board held that as the employer had not contacted the employee’s doctor to discuss the apparent discrepancy between the medical diagnosis and the employee’s observed activities, video surveillance was not appropriate and this evidence was not admissible in grievance proceedings challenging the employee’s dismissal.

Similarly, the British Columbia Grievance Arbitration Board in UFCW Local 1518 v. Sunrise Poultry Processors Ltd. found that the employer could have pursued other less intrusive and more practicable medical alternatives such as contacting the employee’s doctor or obtaining an independent medical assessment. This case arose in the context of B.C.’s Personal Information Protection Act and arbitral jurisprudence holding that an employee has a reasonable expectation of privacy which must be balanced against other interests. 3 In the later 2006 decision of Taillefer v. Treasury Board, the Canada Public Service Labour Relations Board affirmed the twopronged ‘reasonableness’ test and allowed into evidence a video recording of an employee off work due to disability. The Board held that the decision to proceed with surveillance was appropriate and that the surveillance was the least intrusive means of verifying allegations 3 In this case, the availability of reasonable alternatives was added as a third prong of the test, framed as follows:

(1) Was it reasonable, in all of the circumstances, to request surveillance? (2) Was the surveillance conducted in a reasonable manner? (3) Were other alternatives open to the company to obtain the evidence it sought? that the employee was not as incapacitated as she claimed. The Board found that the employee’s honesty was in question, not the medical diagnosis, such that asking the employee’s physician for further information would not have been an effective means of gauging the employee’s honesty and consequently, whether her benefits should be discontinued and her employment terminated. Central to the decision appeared to be the fact that video surveillance was only undertaken when the employee could be seen by the general public and could therefore have no reasonable expectation of privacy.

An employee’s reasonable expectation of privacy may arise by statute, at common law based on the employment relationship or implicitly under the collective agreement. Video surveillance evidence has been held inadmissible based on a reasonable expectation of privacy held by an employee who, in one case, ate lunch away from the work site and in his own truck, and by another employee who took his break in the employee break area. In a 2007 case, however, increased use of video surveillance to investigate allegations of theft was upheld. A key factor in the arbitrator’s decision was that 24-hour video surveillance had already been established on the work site due to federal security requirements and that this fact was known to the employees.

Requirements for Implementing Voice Recognition Technology

The Federal Court of Appeal recently affirmed that the use of voice recognition technology is not a violation of Canada’s privacy legislation, provided that employees consent to the collection of information used by technology (Wansink v. Telus Communications Inc.). Voice recognition technology requires the collection of ‘personal information’ within the meaning of the applicable legislation as characteristics of a person’s voice are personal information. However, the court held that voice characteristics fall at the lower end of the spectrum of personal information requiring protection. The court also emphasized that while it was the voice that was collected, what was used by the employer was not the voice itself, but the voiceprint.

While the purpose behind the technology was appropriate and safeguards were in place for protection of voiceprint information, the employer was under an obligation to obtain consent prior to collecting a biometric voiceprint from an employee.

The court also confirmed that Canada’s privacy legislation protects employees from being disciplined for refusing to breach the legislation. Consenting to a request for collection of personal information is not a breach of the Act, but neither is a refusal to consent a breach of the Act. Despite this interpretation, the court declined to determine whether the employer’s management rights allowed it to discipline an employee for refusing to submit personal information for the voiceprint. The court stated that labour law disputes should be settled in a labour law forum and also declined to determine whether, under the terms of a collective agreement, consent may be given by a trade union on an individual basis.