Arbitrator gives employers a “nugget” for justifying in-plant surveillance

Saskatchewan Labour Arbitrator William Hood made the following comment in dismissing a grievance that challenged the installation of video cameras in a distribution centre that supplies product to hospitals and pharmacies:

The Employer’s implementation of a video surveillance system passes the reasonableness tests both in terms of need and manner of use. To suggest there first must be a breach of the security of the premises before one can justify the use of video cameras for security purposes makes no sense to me in the circumstances. Why would management wait until someone stole the gold to install video surveillance at the Royal Canadian Mint?

This is a nice statement for employers, though the award was carried on a number of good facts.

Re Saskatchewan Joint Board, Retail, Wholesale and Department Store Union and McKesson Canada Corp. (Privacy Grievance), [2010] S.L.A.A. No. 26 (Hood) (QL).

Case Report – Alberta OIPC blesses picket line videotaping for limited purposes

On March 30th the Alberta Office of the Information and Privacy Commissioner held that a union did not need consent to continuously video tape a picket line so it could capture any evidence of picket line misconduct. 

The OIPC held that the union could rely on the Alberta PIPA “investigations exception” to the rule against collecting personal information without consent. The exception applies when a collection, use or disclosure of personal information is “reasonable for the purposes of an investigation or legal proceeding.” The OIPC held that this language is engaged when misconduct is “likely to occur.” It explained:

I accept the broadest of the possible interpretations of the provision. In my view the inclusion of the phrase “reasonable for the purpose” takes the place of any temporal restriction, allowing information to be collected in the appropriate circumstances even though an investigation or legal proceeding may never take place in fact. It strikes me as prudent and therefore reasonable to collect information which could avoid contests, in the context of an investigation or legal proceeding that is reasonably likely to arise over contentious facts which would be hard to establish through witness testimony. As there was a reasonable likelihood of incidents on the picket line that could lead to a police investigation and law enforcement proceedings, and as a Labour Relations Board or court proceeding relative to the conduct of the picketing was reasonably forseeable, an investigation or legal proceeding was reasonably likely to arise in the circumstances of the present case.

This finding – that the investigations exception can apply to surveillance – is of significance that goes beyond the picket line scenario being considered. The OIPC’s treatment of the picket line scenario itself is of less significance but nonethless interesting.

Picketers often employ video cameras and still cameras, a practice thought by some to be an intimidation tactic. In this case, there was evidence of a union communication that stated it would post images on a website called “www.casinoscabs.ca” and the union admitted to several suspect purposes, including dissuading people from crossing the picket line and using humour to support picket line morale. The OIPC did not draw a negative inference from this evidence and accepted that the union’s asserted investigative purpose for collecting images was genuine. Since the union had a single genuine purpose for collecting and using the images, the OIPC explained, it violated neither the consent requirement in the Act nor the reasonable purposes requirement of the Act:

I note finally that the result would be the same even if the Union’s primary purpose was one relative to which the Act gives no authority, and the authorized purpose was relatively a very minor one, as long as the latter was genuine. If I thought the Union was fabricating the authorized purpose to try to validate its collection of information, and that its only true purpose or purposes was other than the authorized one asserted in its submission, I would declare that the collection was in contravention of the Act (or order cessation if collection were continuing) even though the Act authorized collection of the same kind of information for a purpose that the Union did not genuinely have. In this case I believe that the gathering of evidence for the purpose of a possible investigation or legal proceeding was one of the reasons the Union was collecting information through video recordings and photos. Thus it is sufficient to declare that the video recording and photographing was in contravention of the Act (in the absence of consent) only insofar as it was for any of the other purposes.

Despite this limited blessing, the OIPC found that the union nonetheless violated the Act by collecting, using and disclosing images for purposes other than its investigative purpose and, specifically, by taking still photograps of individuals (which did not reveal any misconduct) and by using pictures of a vice-president of the employer in its posters and newsletters. The OIPC also held that the union failed to give notice of its investigative purpose as required by the Act.

Order P2008-008 (30 March 2009).

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).