Arbitrator Agrees to Hear Surveillance Evidence Notwithstanding Policy-Based Preclusion of Employee Monitoring

8 May

Arbitrator Robert Herman issued a notable surveillance decision on April 5th. He held that a school board policy that that stated, “Video surveillance shall not be used for monitoring staff performance” did not preclude the hearing of video surveillance evidence in a discharge arbitration.

The Information and Privacy Commissioner/Ontario has a guideline entitled “Guidelines for Using Video Surveillance Cameras in Schools” that Ontario school boards know well. The guideline states, “Video surveillance should not be used for monitoring staff performance.” Many school boards have adopted this statement in their policies without qualification, leaving a question about the use of surveillance footage as evidence of misconduct.

Arbitrator Herman dealt with this issue, and dismissed a union objection that rested on a board’s adoption of the IPC language. He said:

As to the impact of the Information and Privacy Commissioner’s Guidelines, there does not appear to be any authority for the proposition that school boards are required by law to follow the Guidelines. As noted above, at page 1 the Guidelines state that “These Guidelines were created to assist school boards intending to use or expand existing video surveillance to introduce these programs in a manner that ensures stringent privacy controls. The IPC recommends that all school boards using video surveillance implement formal policies governing their use.” These are “guidelines”, recommendations for policies to be adopted by school boards. And as “guidelines”, absent statutory or regulatory requirement that they be applied and followed by the Board, the Guidelines are not binding upon the Board. Further, as the Guidelines do not refer to sections 51 and 52 of the Act, it is not easy to discern from them what the Commissioner’s position is or would be on the use of videotape evidence in an arbitration, the matter in issue here.

The issue then is whether the Board Policy precludes the use of videotapes in this proceeding. The Policy states that “Video surveillance shall not be used for monitoring staff performance.” The videotapes were not surreptitiously made, and the grievor and other employees were aware that the areas in which they worked were being filmed. The word “monitoring” suggests a viewing, checking or surveillance over a period of time, so that “monitoring” staff performance involves viewing employees’ performance over a period of time to determine how they are performing. Monitoring would occur, for example, if the Board were to regularly or periodically review the videotapes as a method of checking the work performance of employees. The Policy does not permit this use of the videotapes. However, the Board did not review the videotapes of the grievor at work as part of a general review of the videotapes to see how any other caretakers or the grievor were performing their work.

Rather, the Board reviewed the videotapes for a particular period of time after it had received a complaint about the grievor’s performance related to that period and then investigated that complaint. Before it reviewed any videotapes, the Board uncovered evidence of non-performance, and after interviewing her and inspecting her log books and other written records, it believed that the grievor was not being truthful about her behaviour and performance, both reasonable conclusions for the Board to have reached based upon the evidence it had by then discovered. Only at that point did the Board review videotapes of the grievor at work, and it did so for days within the period subject of allegations by the other caretakers. The videotape of February 3, 2010 was first reviewed, and then other dates to determine if the grievor had been lying about cleaning her assigned rooms. Those videotapes were not reviewed as part of a pre-existing monitoring process, but as a search for evidence with respect to particular allegations against the grievor, allegations the grievor denied and that the Board on reasonable grounds believed to be true. In these circumstances, the review of the videotapes did not constitute part of a “monitoring” of staff performance, and seeking to introduce then into evidence does not constitute or sanction a breach of the Policy.

This illustrates an important point, especially given a number of decision-makers have suggested that policy-based restrictions on employment-related “secondary uses” of information are a prerequisite to implementing systems that rely on the collection of personal information. Restrictions on “routine” use for performance management purposes will often be acceptable to employers, but restricting access to evidence of wrongdoing is problematic. It is best that policy language go beyond the IPC language and make this distinction clear.

Toronto Catholic District School Boards v. Canadian Union of Public Employees, Local 1280 (Colella), [2011] O.L.A.A. NO. 180 (Herman) (QL).

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