The big-brother employer
Surveillance of employees may seem like a good way to get proof of misconduct, but it doesn’t always stand up
Mar 3, 2014
By Jeffrey R. Smith
Do you know who’s watching you? If you’re in the workplace, somebody might be — and possibly outside the workplace, too.
Surveillance of employees by employers is a controversial issue. If it’s a case of setting up cameras in the workplace, it’s generally considered acceptable as long as the cameras aren’t hidden and employees are aware of them. If not, the employer could be in danger of violating employees’ privacy if the cameras are in an area where otherwise there might be a reasonable expectation of privacy.
Some employers use other forms of surveillance as well, which can be a little more sketchy. It’s not uncommon for an employer to hire an investigator to spy on an employee outside of the workplace if the employee is suspected of something like lying about medical restrictions. In such cases, the employer would be looking for indications the employee is capable of doing more things than she’s letting on at work.
Both of these forms of employee surveillance have their purposes, but they also raise questions about their usefulness. There have been numerous instances of employers relying on video surveillance in the workplace to prove employee misconduct and determine cause for discipline or dismissal. But video footage doesn’t necessarily provide just cause on its own without further investigation.
About a year ago, a Safeway grocery store in Alberta had its time clock vandalized with a sticky white and clear liquid a couple of times. The company installed a surveillance camera and, after another instance of damage, viewed footage showing an employee hanging around the time clock, leaving and then returning repeatedly with a Styrofoam cup. The employee had been seen putting water and coffee creamer in the cup in the break room. Though the employee’s back was to the camera and it couldn’t be seen what exactly he was doing, the employer felt this proved the employee was the vandal. The employee claimed he accidentally spilled some of the liquid, the employer didn’t believe him and fired him.
However, the employee was reinstated by an arbitrator who found the video footage didn’t clearly show the spill was on purpose and wasn’t enough to disprove the employee’s explanation or show he was the vandal. So while the video footage may have helped determine when the machine was damaged, it wasn’t enough to proof the employee was a vandal and give the employer just cause. See UFCW, Local 401 v. Canada Safeway Ltd., 2014 CarswellAlta 246 (Alta. Arb.).
In a recent blog, I discussed a case involving video surveillance where an employer conducted surveillance of an employee outside of work because the employer suspected the employee wasn’t being truthful about his back injury and medical restrictions. When the employee was observed doing activities beyond his medical restrictions at work, he was fired for being dishonest about his capabilities. However, an arbitrator found there could be a difference between what the employee was physically capable of on occasion outside of work and what he should be expected to do repeatedly for several hours day at work. See Energex Tube and Unifor, Local 523, Re, 2013 CarswellOnt 18465 (Ont. Arb.).
Essentially, the surveillance of the employee didn’t really prove much in terms of the employee’s abilities at work and certainly didn’t provide enough to serve as just cause for dismissal. So was it really worthwhile?
There have been many other cases where hidden surveillance of employees outside of work hasn’t been admissible as evidence for various reasons including privacy and inconclusive results. Is it worth the cost and trouble if it can’t be relied upon for just cause? As always, a comprehensive investigation into employee misconduct is necessary before determining a course of action, and simply relying on surveillance often isn’t enough to satisfy that requirement.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.