On May 24th, Arbitrator Saunders of British Columbia affirmed an employer’s implementation of a driving safety system that featured an in-cab camera that recorded continuously, with access to feed limited to certain defined “triggering events” and reasonable cause scenarios.
There’s a good discussion of “sensitivity” and whether Irving Pulp and Paper requires employers to prove a “demonstrated safety problem” to justify the use of any exercise of management rights that touches upon a reasonable expectation of privacy. Arbitrator Saunders said it does not:
I read the Court’s endorsement of Arbitrator Picher’s award in Nanticoke, to reflect an underlying concern about the extreme privacy intrusion occasioned by random drug and alcohol testing. On that basis, it was concluded that an intrusion amounting to “a loss of liberty and personal autonomy” can only be justified by negotiated provisions or by a compelling countervailing interest, such as a demonstrated problem that cannot be adequately addressed by less invasive means. A corresponding level of intrusion is not present on the facts of the present case.
Accordingly, I do not find that Irving posits a dangerous workplace and a demonstrated safety problem as prerequisites in all cases safety is invoked to justify privacy intrusions, much less the intrusion imposed by overt video surveillance. Rather, the existence of safety infractions or the risk of accidents, remain to be factored in the proportionality assessment—the more serious the intrusion, the more compelling the justification required.
Arbitrator Saunders then affirmed the employer’s implementation based, in part, on a finding that the employer’s utilization of employee images was “confined to intermittent safety-related events and is only viewed to advance legitimate incident-based objectives.”
Lafarge Canada Inc. v Teamsters, Local Union No. 213, 2018 CanLII 69607 (BC LA).
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