Case Report – Arbitrator says thorough probing is a prerequisite to surveillance

On November 27th, Manitoba labour arbitrator A. B. Graham excluded video surveillance evidence that showed an employee who was on light duties playing sponge hockey, in part, because the company ought to have been more direct in questioning the employee about his off duty conduct.

When the employee was confronted about playing sponge hockey, he did not lie but his answers were evasive. As a result, the company hired a private investigator to conduct video surveillance. Although the arbitrator excluded the video surveillance evidence based on a finding that the company should have asked the employee pointed questions first, he also held that the employee breached a duty to cooperate in the accommodation process by being more forthright about playing hockey and whether it was consistent with his medical restrictions.

Re Praxair and General Teamsters Local Union 979, [2007] M.G.A.D. No. 37 (Graham).

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