Another Ontario Video Surveillance Case. So what!?

On June 21st Ontario arbitrator Randi Abramsky held that an employer must meet a (relatively forgiving) reasonableness standard to adduce surreptitious video surveillance evidence.

I’ve been following this issue (see here and here, most recently), but am wondering the point. I find the split in the arbitral jurisprudence very frustrating and somewhat discrediting to our system of arbitral justice. I doubt our courts would take the unorthodox and interventionist “tiebreaker approach” recently taken by the New Brunswick Court of Appeal, but this preliminary issue (which would be reviewed on the correctness standard) needs to find its way to court.

St. Lawrence Cement Inc. and International Brotherhood of Boilermakers, Local D366 (21 June 2011, Abramksky).

NBCA Says Pre-Existing Alcohol Problem Not a Prerequisite to Random Alcohol Testing

Last Thursday the New Brunswick Court of Appeal issued a rather remarkable decision in which it held that employers who manage “inherently dangerous” workplaces do not require evidence of a pre-existing alcohol problem to justify random alcohol testing.

The decision is most remarkable for its approach. Specifically, Justice Robertson held that a great need for policy guidance, especially in light of conflicting arbitral jurisprudence, justified review on the correctness standard:

Certainly, the Supreme Court has yet to accord deference to an administrative tribunal with respect to questions of law umbilically tied to human rights issues: see Jones and de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009) at 553. Similarly, the Supreme Court has held various privacy commissioners do not have greater expertise about the meaning of certain concepts found in their respective statutes which limit or define their authority: see Jones and De Villars at 553, note 223. Accepting that no analogy is perfect, I see no reason why this Court should depart from those precedents. Indeed, if one looks to the arbitral jurisprudence, one is struck by the reliance on judicial opinions touching on the matter. The overlap reflects the general importance of the issues in the law and of the need to promote consistency and, hence, certainty, in the jurisprudence. Finally, I am struck by the fact that there comes a point where administrative decision makers are unable to reach a consensus on a particular point of law, but the parties seek a solution which promotes certainty in the law, freed from the tenets of the deference doctrine. In the present case, it is evident that the arbitral jurisprudence is not consistent when it comes to providing an answer to the central question raised on this appeal. Hence, it falls on this Court to provide a definitive answer so far as New Brunswick is concerned. This is why I am prepared to apply the review standard of correctness. But this is not to suggest that I am about to ignore the arbitral jurisprudence which has evolved over the last two decades. Let me explain.

Justice Robertson’s “let me explain” line leads to a full analysis of the cross-Canada arbitral jurisprudence in an attempt to derive a principle for the justification of random alcohol testing respectful of arbitral efforts. In the end, he says:

As matter of policy, this Court must decide whether an employer is under an obligation to demonstrate sufficient evidence of an alcohol problem in the workplace before adopting a policy requiring mandatory random alcohol testing. In my view, the balancing of interests approach which has developed in the arbitral jurisprudence and which is being applied in the context of mandatory random alcohol testing warrants approbation. Evidence of an existing alcohol problem in the workplace is unnecessary once the employer’s work environment is classified as inherently dangerous. Not only is the object and effect of such a testing policy to protect the safety interests of those workers whose performance may be impaired by alcohol, but also the safety interests of their co-workers and the greater public. Potential damage to the employer’s property and that of the public and the environment adds yet a further dimension to the problem and the justification for random testing. As is evident, the true question is whether the employer’s workplace falls within the category of inherently dangerous. It is to that issue I now turn.

On the facts, Justice Robertson held that Irving’s kraft mill met the “inherently dangerous” criterion, a finding made somewhat easy by the arbitration board’s finding that Irving’s workplace was “dangerous,” but not dangerous enough to justify random alcohol testing without evidence of a workplace substance abuse problem.

Syndicat canadien des communications, de l’énergie et du papier, section locale 30 c. Les Pâtes et Papier Irving, Limitée, 2011 NBCA 58 (CanLII).

Surveillance Evidence and the Reasonableness Requirement Debate – Where do Ontario Arbitrators stand?

Ontario Labour Arbitrator Brian Sheehan is the latest arbitrator to weigh in on whether it is proper for a labour arbitrator to exclude relevant surveillance evidence because the surveillance evidence does not pass an objective “reasonableness” test. In International Hotel v. United Food and Commercial Workers, Arbitrator Sheehan dealt strictly with the legal test. He held that arbitrators can and should exclude evidence obtained through covert off-duty surveillance if the surveillance effort is not reasonable in all the circumstances.

There is quite a split in opinion amongst arbitrators on this question. Here is my understanding of where Ontario arbitrators stand.

This list is based on Ontario because the debate seems most alive here. Also, as some have argued, there is a statutory underpinning for privacy rights in other provinces that makes Ontario unique.

I must make two qualifications given the above display’s simplicity. First, the list doesn’t indicate the strength with which arbitrators have endorsed the two positions or their bases for doing so (which vary). Second, it is also not to suggest that the all the “reasonableness arbitrators” have adopted the same standard. Some, for example, have suggested that reasonableness should be assessed with an understanding that excluding relevant evidence significantly affects an employer’s right to be heard and an arbitration board’s truth-seeking function.

BC Arbitrator Endorses Unified Test for Assessing Legitimacy of Access to Internet Log File

On May 12th, Arbitrator Nicholas Glass held that a British Columbia public body did not breach the Freedom of Information and Protection of Privacy Act by accessing an internet log file in the course of a time theft investigation.

The outcome is not surprising. The employer had grounds (an anonymous complaint), the grievor had previously been disciplined for misconduct that raised questions about his dishonesty, the employer had a good acceptable use policy that the grievor had recently acknowledged and log files contain relatively non-sensitive information. Theses facts left arbitrator Glass with a very different concern that dealt with by the British Columbia OIPC in 2007 when it held that the University of British Columbia breached FIPPA in installing spyware in course of a time theft investigation.

The decision is more notable for Arbitrator Glass’s suggestion that the statutory “necessity” requirement (common to most public sector privacy statutes) should be unified in principle with the reasonableness requirement applied by labour arbitrators. In doing so, he endorses the following statement by former British Columbia Commissioner Loukidelis in the Mission School District Case:

At the same time, I am not prepared to accept, as the Complainants contend, that in all cases personal information should be found to be “necessary” only where it would be impossible to operate a program or carry on an activity without the personal information. There may be cases where personal information is “necessary” even where it is not indispensable in this sense. The assessment of whether personal information is “necessary” will be conducted in a searching and rigorous way. In assessing whether personal information is “necessary”, one considers the sensitivity of the personal information, the particular purpose for the collection and the amount of personal information collected, assessed in light of the purpose for collection. In addition to FIPPA’s privacy protection objective is also relevant in assessing necessity noting that this statutory objective is consistent with the internationally recognized principle of limited collection.

In applying this pragmatic approach, Arbitrator Glass rejects the notion that the employer should have simply confronted the grievor. He states, “The point is that in order to manage the employment relationship the employer in these circumstances was entitled to thorough, accurate and objective information about the frequency and extent of [the grievor’s] non-work-related internet use.”

Fraser Health Authority v. H.S.A.B.C., 2011 CarswellBC 1174 (Glass).

Arbitrator Deals With Privacy as Between a Union and its Members

On May 6th, Arbitrator Michel Picher dismissed a grievance in which a union claimed a right of access to a witness statement given by a member who had declined union representation in being interviewed.

The decision turns on the specific language of the collective agreement at issue, though each party made principled arguments – the union claiming a broad right of access based on its representational role and the employer arguing that the proposed disclosure of personal information was prohibited by PIPEDA.

Arbitrator Picher gave some credence to the employer’s argument by suggesting that consent to disclose personal information must be judged in the circumstances. He also rejected the union’s argument, stating that a union’s role as certified bargaining agent does not give it an “inherent right” to information about members that is generated in the course of their employment.

Canadian Pacific Railway Company v. International Brotherhood of Electrical Workers, 2011 CanLII 24835 (ON L.A.)

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

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).

Internal Investigations and Employee Privacy

I presented today at the Association of Certified Forensic Examiners annual fraud conference. My topic was managing privacy issues in internal investigations. My aim was to provide some content to help investigators build a better dialog with internal legal counsel and privacy officers about investigation tactics that touch on privacy issues. This was the first time I’ve done this presentation, and it seemed to go well.

I also tagged on a brief section on “the investigation record” out of interest. As part of this section I surveyed the audience and was interested to see that about half of attendees conduct witness interviews with an audio recording device, something I have recently guided clients away from because of its potential impact on witness candor. One audience member, a former police officer, said that witnesses forget about the recording device after about two minutes. Interesting and notable.

My slides are below.

Sunset Clause Doesn’t Demand Physical Removal of Disciplinary Notes From File

On December 3, 2010, Arbitrator Goodfellow held that the following collective agreement language does not require the physical removal of expired disciplinary documentation from an employee personnel file:

ARTICLE 8 – ACCESS TO FILES

8.01 – Access to Personnel File

Each employee shall have reasonable access to his/her personnel file for the purpose of reviewing any evaluations or formal disciplinary notations contained therein, in the presence of the Director of Labour Relations & Human Resources or designate. An employee has the right to request copies of any evaluations in this file.

8.02 – Cleaning of Record

Any letter of reprimand, suspension or any other sanction will be removed from the record of an employee eighteen (18) months following the receipt of such letter, suspension or other sanction provided that such employee’s record has been discipline free for one year. All leaves of absence in excess of ten (10) calendar days will not count toward either of the above periods.

Arbitrator Goodfellow appears to rely most strongly on the apparent distinction drawn in the above language between a “record” and a “personnel file.” More broadly, he says, “any such physical ‘removal’ would be secondary to the primary purpose of any sunset clause, which, in our view, is to preclude Employer reliance on stale discipline, except in the kind of limited circumstance(s) to which the Union refers [e.g., to rebut an affirmative statement made by an employee about having a clean record] .”

Carillion Services v. Canadian Union of Public Employees, Local 942, 2011 CanLII 10605 (ON L.A.).

Social Media and the Hiring Process

I spoke today at The Canadian Institute’s “Managing Business and Legal Risks in Social Media” conference in Toronto. I’ve talked about this topic before, but I have advanced my thinking lately.

For one, I’ve developed some new thoughts on the subject of notification and consent to conduct “internet background checks” on potential candidates. I’ve gone from suggesting that, as a matter of policy, employers have no reason to forgo seeking consent to believing that, in some circumstances, manipulation of published information may be too great a concern to allow for notification and consent. The right answer, from a policy perspective, depends on an employer’s precise objectives.

Of course, those employers who are regulated by privacy legislation must seek consent to collect personal information from the internet for candidate screening purposes unless they can rely on a “publicly available information” exception. These exceptions are worded fairly broadly. PIPEDA, for example, carves out the following from its consent requirement:

“personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information”

Though some might argue that everything posted online does not “appear in a publication,” I’d rather argue the opposite. The other relevant limitation evident from the language above is on seeking information “provided” by persons other than the subject of the check. The Alberta and British Columbia statutes have similar carve outs from their consent rule. An interesting and relevant topic. Do you have a view? Please comment.

The other question I addressed today was, “How should the formal employment contract (as opposed to policy) be used to protect against employment-related social media risks?” The answer I gave today is “not much,” though I’m an employment contract minimalist. I do like the idea of “surfacing” and expressly dealing with potential conflicts that are foreseeable based on a candidate’s established online profile and established media properties, but otherwise think employers should deal with social media issues through policies that are ancillary to formal contractual documentation but incorporated by reference.

Slides with complete thoughts on the legal requirements for conducting internet background checks and more below!