I spy with my little eye...

Can employees conduct their own video surveillance at work?
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 03/12/2014

She was desperate to be heard.

Having been sexually assaulted by a senior foreman on a number of occasions in late 2010, a City of Calgary clerk reported the incidents to a manager — who discussed the idea of extending her desk to make it more difficult to approach her from behind, and then left on vacation.

Left alone, the clerk, who worked in the roads division, installed a spy camera to capture the next assault on film.

While eventually the assailant was suspended without pay, charged by police and pled guilty, the clerk was diagnosed with post-traumatic stress disorder and admitted to hospital for “suicidal ideation.” She left her work in August 2011 — and has not returned.

In the end, the arbitrator awarded her $125,000 in general damages, $135,630 for loss of past income, $512,149 for loss of future income, $68,243 for pension loss and $28,000 for special damages — a total of $869,022.

“There was a total failure on the part of those responsible to meet the obligations under the collective agreement, human rights legislation, occupational health and safety legislation and the City’s respectful workplace policy,” said arbitrator Phyllis Smith in her Dec. 16, 2013, decision.

“The (worker) was treated as a problem to be managed, as opposed to a victim to be supported, and it is that treatment which contributed significantly to the ultimate state in which (she) finds herself.”

Surveillance questions

While the case is a tragic one, it also raises questions about secret surveillance of an employee — by another employee. And we’re seeing a shift in cases, according to Anne Côté , a partner in the labour and employment group and head of the privacy group at Field Law in Edmonton.

“We’re seeing all these questions come in the door about what employees can do with other employees or supervisors… when is it appropriate for an employee to perform some kind of surveillance on co-workers?” she said.

“We have some sense that we are concerned about what our employer is doing with our personal information, but now we have this added layer of what are other employees, what are our fellow co-workers doing with our personal information?”

While previous cases have looked at surreptitious audio-recordings during interviews or meetings — to prove instances of bias or bullying — video has not yet been covered, she said.

“People get very sensitive about that, despite the fact that most of us would acknowledge we have a lowered expectation in the workplace when we’re going about and conducting our business.”

A 2012 decision in Ontario is somewhat related, where one BMO employee looked into the personal bank records of another employee at least 174 times over a four-year period. The court recognized the right of the woman to sue for damages for the anguish and suffering caused by the intrusion.

“We’re still struggling with how to respond to that decision,” said Côté.

“As we have with employers and employees, we’re trying to assess as between co-workers when is something authorized and when is it not. And it’s much more difficult to draw those lines,” she said.

“But you’re looking at really egregious forms of behaviour before you can say that one individual is really impinging on someone’s privacy expectations, especially in a workplace where those expectations may be lowered.”

There’s a distinction between overt surveillance, such as security cameras, and covert surveillance, as between co-workers — unless it’s totally blatant, said Côté.

“Usually what we’re talking about in these cases is covert forms of surveillance where someone isn’t letting someone else know that they’re taping them and it doesn’t allow that person an opportunity to conduct themselves as they would if they knew that they were being surveilled — but that doesn’t make all the evidence go away, for instance, in an investigation. So these are all factors to be considered.”

More and more clients are coming in with recordings of conversations with colleagues, said David Whitten, founding partner at Whitten & Lublin in Toronto.

“It has proliferated in the last couple of years,” he said.

“Filming in the workplace by an employee — that is going to be something we are going to see again, with smart phones.”

While some case law suggests an audio recording by one executive or manager of another executive or manager could be considered a breach of fiduciary duties, that’s fairly unique, said Whitten.

“If you have a justifiable, good faith reason for recording somebody else in the workplace, then I don’t see an issue with that — and so far the courts haven’t either.”

And while employers have to jump through a number of legal hoops when it comes to installing cameras in the workplace, that’s in contrast to an individual employee who has a rational basis for doing it, as with the City of Calgary clerk, said Whitten.

“The same analysis would apply as with a recording. As long as she’s not filming other people other than her and this person, the fact that she set it up and she was consenting because she set it up, I don’t see that as being a legal issue,” he said.

“The fact that the privacy may have been impacted becomes secondary to the fact that this person was caught engaging in inappropriate behaviour, unlawful behaviour as a result of this camera install.”

Privacy has been evolving and it’s starting to get some teeth, said Whitten.

“What we’re seeing in jurisprudence now is that courts and arbitrators are becoming more and more willing to award damages for breaches of privacy.”

In cases involving surreptitious audio taping of people or employer cameras, arbitrators look at balancing interests in determining whether the evidence is admissible, said Kristin Gibson, a partner in the labour and employment group at Aikins, MacAulay & Thorvaldson in Winnipeg.

“I would expect that an arbitrator here would use that same type of test,” she said.

“My gut reaction to it is that there’s a huge difference between somebody to whom something has happened setting up something to try to record the next incident… and somebody who just happens to have a videocam on their computer, trolling around in the hopes of finding somebody doing something wrong.”

While an employer might have difficulty with random footage taken by one employee of another, in this situation there was clear probable cause for the clerk to have taken this step, said Gibson, who is also vice-chair of the Manitoba Labour Board.

And in Manitoba, if the breach of privacy is to protect yourself or your property rights, it’s an exception, she said.

“Where a person is trying to protect themselves legitimately, I think that the other person would have a really hard time making out any protectable privacy right.”

Employer policies

So, given the proliferation of smartphones, tablets and other devices in the workplace, is there a need for employer policies around surreptitious recordings?

It’s not a bad idea because most employers already have electronic usage policies of some sort, said Gibson.

“It would be fairly easy to insert something in there about using phones, using cameras, that sort of thing. It’s a good thing for employers to turn their minds to,” she said.

However, while employers could certainly say this kind of behaviour is not allowed, it begs the question of what to do if people violate the policy, she said.

But some employers will prefer to respond to this kind of issue only when it surfaces, such as someone wanting to tape a meeting, said Côté.

“That’s pretty rare and I haven’t seen too many employers considering developing a policy because there’s so much uncertainty surrounding when you can tell one employee not to record another employee,” she said.

“I wouldn’t recommend it unless there’s some very particular concern because then the policy can be specific to that type of instance.”

However, the issues of sexual harassment and breach of privacy can be handled with policies, said Côté.

“If surveillance touches on that, then maybe we can look to some of these traditional categories to decide what to do.”

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