Arbitrator dismisses video surveillance grievance, makes principled statements

On November 12th, British Columbia labour arbitrator Stan Lanyon dismissed a policy grievance that challenged the implementation of a video surveillance system in an equipment production and maintenance plant.

Surveillance cases are driven by their facts, but Arbitrator Lanyon did dismiss a union argument that overt and covert surveillance are equally invasive: “covert surveillance is more a more egregious violation of privacy because it is capable of causing more distress, anguish and embarrassment.”

As significantly, he held that surveillance systems can be justified without evidence of “a past history of serious breaches of safety, or security issues.”

Finally, Arbitrator Lanyon recognized a difference between using cameras for disciplinary (or supervisory) purposes and using video surveillance footage in the investigation of incidents. This distinction is not clearly drawn in some case law (and employer policies), but is important.

Kadant Carmanah Design v International Association of Machinists and Aerospace Workers, District 250, 2015 CanLII 79278 (BC LA).

Lancaster House panel on monitoring job performance and productivity

I spoke today at a Lancaster House labour arbitration conference on a good panel with Arbitrator Paul Craven and union counsel Samantha Lamb, with Sean McGee of Nelligan O’Brien Payne as our chair.

I quite like this Cargill Foods case by Arbitrator Craven, in which he distinguishes between omnipresent surveillance (my words) and other continual collections of personal information that are more benign. His comments on Cargill today highlighted to me that there is no proscription against collecting personal information for the purpose of improving job performance (as is often suggested) but quite a real proscription against collecting personal information in a manner that is highly invasive and a substitute for in-person supervision.

I’ve put my speaking points below. They include some ideas about the BC OPIC’s recent Kone case, a case which further illustrates this point.

Case Report – Arbitrator says relevant video surveillance evidence is admissible… period

On January 26th, Saskatchewan Labour Arbitrator William Hood rejected a union argument to exclude surveillance evidence recorded by an in-plant video surveillance system. In doing so, he made the following broad statement on the admissibility of unlawfully obtained evidence at labour arbitration:

Video evidence, even if improperly obtained, is admissible. As a general rule, subject to circumstances where the Canadian Charter of Rights and Freedom [sic] apply, the test for admissibility of evidence in a court of law is relevance and if admissible, the court is not concerned with how the evidence was obtained (see R. v. Wray, [1971] S.C.R. 272).

Not all Canadian labour arbitrators apply this traditional rule of evidence.

Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. McKesson Canada Corp. (Birch Grievance), [2010] S.L.A.A. No. 1 (QL) (Hood).

Case Report – Arbitrator says exhausting less intrusive means is not required to engage in workplace surveillance

On August 31st, Arbitrator Watters held that video surveillance evidence taken from a hidden camera installed in a long-term care facility resident’s room was admissible in a termination arbitration.

Many labour arbitrators will balance employer and employee interests in determining whether to admit surveillance evidence. This case is notable because the parties engaged in a dispute about whether the reasonableness test used to effect this balance includes a “no less intrusive means” component. Arbitrator Watters held that it does not – the test is a reasonable grounds/reasonable means test, though consideration of other options may support the grounds for surveillance.

The National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 and The Municipality of Chatham-Kent (Riverview Gardens) (Re), [2009] O.L.A.A. No. 424 (Watters).

Employer access to employee e-mails in Canada

I presented at an OBA privacy conference back in early June but held off posting a short paper I wrote for it entitled, “Employer access to employee e-mails in Canada.” The paper argues that there are signs that the traditional “no expectation of privacy” approach to addressing employer access to employees’ stored communications is waning, leaving employers with a choice between giving clearer notice to employees or, alternatively, implementing purpose-based controls to protect employee privacy.

This is a hot topic north and south of the border, and was so even before the Superior Court of New Jersey Appellate Division issued its much discussed decision in Stengart v. Loving Care Agency on June 26th.

Stengart is about whether privilege is waived in solicitor-client communications that are stored on an employer’s system. Our own leading case on this issue is Daniel Potter, which suggests that privileged communications made by employees on employer systems deserve greater protection than other “private” employee communications. Despite this distinction, the reasoning in Stengart is very broad, very pro-privacy and is further reason for employers to pay heed to the issues I raise in my paper.

For a copy of the full paper, please click here. And please feel free to contact me or comment below with your feedback and ideas.

Case Report – Court finds constructive dismissal for engaging in workplace surveillance

On December 15th, the Ontario Superior Court of Justice held that an employee was constructively dismissed because her employer installed a video camera in her office on questionable grounds and recorded images surreptitiously for about nine months before she discovered the camera and abruptly quit.

Prudent employers and their counsel have long been cautious about the enforcement of employee privacy rights through constructive dismissal claims, claims in which an employee alleges a fundamental breach of an express or implied term of an employment contract based on a privacy violation. This case, however, is the first I’m aware of in which such a claim has been successfully made.

While significant in illustrating the risk to employers who take a casual approach to employee privacy, the outcome is not surprising given the facts. Most significantly, the employer installed the camera to address an undisputed theft problem, but did not suspect the plaintiff. The only reason it had for installing the camera in her office was that it thought the suspects would go to the plaintiff’s office to “review the loot,” a suggestion the Court said was “preposterous.” The plaintiff also appears to have discovered the camera when she visited a supervisor’s office and saw a live feed of her office, raising a serious question about use and security of the images.

The Court did not mention whether the employer had a policy incorporated into the employment contract that gave it license to conduct surreptitious monitoring of its workplace or anything about the plaintiff’s expectation of privacy, but even a well-drafted and properly incorporated policy might not have given rise to an effective defence on these facts.

Colwell v. Cornerstone Properties Inc., 2008 CanLII 66139 (ON S.C.).

Case Report – Workplace surveillance system survives arbitral scrutiny

On July 4th, Arbitrator Craven partially upheld a policy grievance which challenged the expansion of an employer’s in-plant video surveillance system but nonetheless gave a strong endorsement to the employer’s purpose for using video surveillance.

The grievance was about the expansion of a system video cameras in a meat packing plant. The system featured un-monitored, high resolution cameras, some of which were fixed on work areas. It recorded digital images which were retained as long as disk space permitted and apparently not based on a fixed retention period.

Although there was some ambiguity about the purpose of the system, Aribitrator Craven ultimately found that the purpose of the system was, “to investigate plant security, industrial discipline and food safety incidents that come to the Employer’s attention by other means than monitoring the video in real time or viewing or sampling the recordings.” He held this investigatory purpose was legitimate. He also made clear that the employer was not using the cameras to “systematically collect information about employees or to identify occasions for discipline.”

Arbitrator Craven’s distinction between using cameras to support an investigation and using cameras to monitor is strong. He suggests that an investigatory purpose is more likely to be upheld as a legitimate exercise of management rights and less likely to be objectionable because of its intrusiveness. On the intrusiveness issue, he explains:

Indeed, it is a misnomer to describe what the camera system does as ‘observation’ at all. It merely optically, mechanically and electronically collects, transmits and records digital information which does not constitute ‘observation’ until a human observer views the displayed or recorded images. If the cameras continued to operate but no-one viewed the images, we might still describe what was happening as ‘surveillance,’ but surely not as ‘observation.’ It is the potential for observation, not its inevitable realization, that underlies the weak analogy between camera and supervisor. (Compare the characterization of electronic surveillance as ‘inhuman’ (page 30) and indeed ‘fundamentally anti-human (page 29) in Re Puretex Knitting Co. Ltd. and Canadian Textile and Chemical Union (1979) 23 L.A.C. (2d) 14 (Ellis).)

As the Union presents its case, the main argument to the intrusiveness of the video surveillance sys-tem is its capacity for monitoring employees, whether in real time or by systematic subsequent review of the recordings. I accept the Employer’s evidence that it does not monitor employees.

Arbitrator Craven focuses on the use of the cameras rather than their mere presence. Not surprisingly then, he was uncomfortable about the lack of:

  • policy-based restrictions on the use of data (i.e. about the risk of “scope creep”);
  • the absence of a formal data retention rule; and
  • (most interestingly) the absence of rules governing union access to data.

Based on a separate finding that the employer had breached a technological change provision in its collective agreement by not engaging in discussions with the union when it expanded the system, he ordered the employer to meet with the union to engage in discussions, implying that the parties should deal with his concerns by way of mutual agreement.

Cargil Foods, a Division of Cargill Ltd. v. United Food and Commercial Workers International Union, Local 633 (Privacy Grievance), [2008] O.L.A.A. No. 393 (Craven) (QL).

Case report – Condonement means employer barred from investigating computer misuse

On September 24th the Office of the Information and Privacy Commissioner for British Columbia held that the University of British Columbia violated the British Columbia Freedom of Information and Protection of Privacy Act by conducting a “reasonable grounds investigation” of an employee’s personal computer use.

The employee, an engineering technician, had a history of productivity problems. Although the University adduced evidence that it was managing the
employee’s performance, the complainant countered with evidence that he used his computer for non-work-related purposes openly and that and that the University tolerated this. The University’s acceptable use policy also allowed for “incidental personal use” within some restrictions.

The University decided to investigate the employee’s computer use after receiving a complaint about the his untimely service. It started by collecting the log file that listed websites visited. This showed a significant number of non-work-related websites, so the University then used software (spyware) to collect data that allowed it to identify the period of time the grievor spent on non-work-related sites. The spyware also captured screen shots in two minute intervals and, as a result, captured the employee’s personal correspondence, his bank account number and other information about his personal finances.

The adjudicator held that the University was not authorized to collect the log file, the more detailed information collected by the spyware and the screenshots. Her decision is significant for three reasons.

First, the adjudicator applied the contextual necessity test recently articulated by Commissioner Loukidelis in Order F07-10 (my report here). In this test, necessity is assessed in the entire context and in light of the privacy-protective purpose of the Act. In discussing this test, the adjudicator held that an employer must not necessarily exhaust all less intrusive means of meeting a legitimate objective to meet the necessity test, but that this is one factor to consider in the analysis.

Second, the adjudicator’s reason for finding that the collection of screen shots was violative rules out the collection of screen shots as an investigatory tool unless the content of the websites is the basis for the investigation – e.g. for pornography investigations. She said:

Information which reveals the complainant’s specific activities on non-work related websites is not, in this case, directly related to UBC’s human resources activities. As UBC notes, this is not a case involving an allegation that an employee accessed inappropriate material on the internet. The specifics of the complainant’s banking transactions, or his personal correspondence, are not relevant to any program or activity of UBC’s. The GESS Report, therefore, has some information that is relevant to managing the complainant’s employment, and some information which is not.

Third, in finding it was not necessary for the University to collect the log data and information about the amount of time the employee spent on non-work-related sites, the adjudicator relied heavily on the University’s permissive approach to personal use. In light of this approach, she held that the next necessary and reasonable step would have been to put the employee on notice of his misconduct rather than conduct surreptitious surveillance.

It is difficult to understand how the surreptitious collection of information about an employee’s internet use can be necessary in the absence of any attempt to question the employee about his activity, especially when the supervisor was aware of that activity and the complainant knew the supervisor was aware of it.

While it would be easy to frame this case as a message to employers about the harms of condoning personal use, there may be more to it than first meets the eye. This is because the foundations of workplace computer use are arguably changing. Not only are the internet applications used in day-to-day living more pervasive, the rise of “Web 2.0” is starting to blur the line between personal use and business use. One may also argue that employees in some sectors (especially professionals) are spending more and more of their waking day working. So can the reasonable employer afford to do anything but condone personal use? And what does this do to the idea, accepted widely in the existing case law, that an employee should have no expectation of privacy on a work computer system? This case may signal a next wave in workplace monitoring litigation in which some of these questions will be raised and answered.

University of British Columbia (Re), 2007 CanLII 42407 (BC I.P.C.).