Case Report – Surveillance evidence admitted and termination upheld

On January 4th, arbitrator Watters upheld a termination based on the admission of evidence obtained by surrpetitious video surveillance which revealed the grievor performing activities inconsistent with his medical restrictions.

Mr. Watters viewed the evidence before determining whether it would be admitted under a two part reasonableness test: (1) was there a reasonable basis to engage in surveillance? and (2) was it conducted in a reasonable manner? In determining that the evidence was admissible, he considered that:

  • the Union had advised its members of the employer’s practice in using video surveillance;
  • the grievor worked in the highly-regulated gaming industry (which lowered his expectation of privacy, presumably based on the trust required of gaming sector employees);
  • the grievor had not shown a material improvement in his condition in approximately four months, even after the company medical adviser had questioned whether there was an objective basis for the medical claim;
  • the manager initiating the surveillance had reason to doubt the grievor’s credibility because she had administered two previous WSIB claims in which the his medical claims had been rejected; and
  • the grievor was not forthright at the hearing, which supported the reasonableness of the manager’s decision to engage in surveillance rather than confront the grievor.

Arbitrator Watters also rejected the Union’s argument that the evidence of malingering should be excluded because the employer had improperly terminated the grievor’s modified work arrangement (as he had found). Instead, he ordered compensation as a remedy.

Re National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Local 444 and Windsor Casino Ltd. (Hideq Grievance), [2008] O.L.A.A. No. 35 (QL) (Watters).

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