Audio recording of correctional officers used in investigation of misconduct
Can an employer use covert surveillance data to investigate employee misconduct and justify dismissal? According to a Nova Scotia arbitrator, the answer is yes – as long as the data isn’t what prompted the investigation and disciplinary action.
“If people know they're being recorded, it's going to be a little bit different, but this was covert surveillance,” says Lennie Lejasisaks, an associate at Fasken Martineau DuMoulin in Toronto.
“But what I think really drove the arbitrator’s decision is the fact that the employer only reviewed audio surveillance footage after a complaint and investigation was triggered.”
Fired for misconduct
This issue of how covert surveillance data can be used came up when two Nova Scotia correctional officers were investigated and then fired for misconduct with audio recordings of them in an inmate transport vehicle used in the process.
The Central Nova Scotia Correctional Facility is a medium-security correctional institution in Bedford, NS, operated by the Nova Scotia Department of Justice (DOJ). The facility has video surveillance cameras throughout the building which record only video and everyone knew they were there. Management could review footage in the event of an incident.
Inmate transport vehicles had four cameras, two of which were focused on the inmate compartments in the back of the vehicle. These cameras operated whenever the vehicle’s engine was running and recorded both audio and video. The footage could only be accessed with a special “dongle” that allowed downloading from the DVD onto a laptop and could only be viewed with a proprietary software player. When the camera DVD reached capacity, new recordings would overwrite older footage.
The DOJ did not have any written policies or directives stating that there was audio recording in any corrections vehicles.
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Complaint about officers’ behaviour
On Dec. 2, 2021, the two officers transported an inmate to a hospital for cancer treatment in an inmate transport vehicle. While at the hospital, they spoke to and were overheard by a social worker who was with the inmate during the treatment.
Later that day, the social worker made a complaint to the DOJ alleging that the two officers had conducted themselves in an offensive and unprofessional manner at the hospital, including observations about female nursing staff and comments about colleagues. The DOJ placed the officers on paid administrative leave while it investigated and asked them to submit written statements.
In their statements, the officers acknowledged that some of their conduct was unprofessional. The DOJ interviewed them and the inmate they had transported. Based on the interviews and the statements, the DOJ decided to review audio recordings that were made automatically in the inmate transport vehicle.
Upon completion of the investigation, the DOJ concluded that both officers demonstrated inappropriate and unprofessional behaviour while supervising an inmate at the hospital – including open conversations about confidential matters around the inmate - and one of them made inappropriate and unprofessional comments to the other in front of the inmate in the vehicle, with the latter comment recorded by the vehicle’s recording equipment. It terminated the officers’ employment on Feb. 23, 2022.
The union contested the use of the recordings on the grounds that covert surveillance was an invasion of employee privacy and an unreasonable exercise of management rights.
Several factors come into play when individual offices and workstations are under surveillance, says a lawyer.
Audio recording in vehicle not a secret: employer
The DOJ maintained that the union and the two officers were aware that the inmate transport vehicle had automatic recording equipment, pointing to a 2014 email to the union and correctional officers discussing two new vehicles that had automated video – one was a non-secure car and the other was an “a secure offender transport vehicle.” It also said that it was discussed in training, although there was no documentation of that.
The adjudicator found that the DOJ did not establish that the union or the officers knew that there was recording of audio in the vehicle. They all claimed that they didn’t know and there was no policy, so the only document indicating it was an email in 2014 – before either of the officers started working for the DOJ – about other vehicles. In addition, there were no stickers or signs warning of audio recordings, said the adjudicator, adding that there was no specific evidence that it was discussed in training.
Since the officers weren’t aware of the audio recording in the vehicle, it was covert and the DOJ had the onus of proving that using the footage was reasonable, said the adjudicator.
The adjudicator referred to a Supreme Court of Canada decision, Larocque, that established that evidence that was central to an employer’s case should not be excluded, in the interest of “natural justice.” In this case, the DOJ contended that the conversation between the officers in the vehicle was unprofessional and the recording of it was central to its decision to dismiss them.
The adjudicator found that the issue of whether it was reasonable to record audio data in the vehicle would be more appropriate for a policy grievance pursuant to the DOJ’s management rights under the collective agreement. However, the union did not file a policy grievance and instead was challenging the DOJ’s access and use of the recordings, said the adjudicator.
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Recording used to corroborate evidence
The adjudicator found that the DOJ only decided to download and review the audio recording after it already had other evidence from the social worker who complained of the officers’ conduct, the inmate who witnessed the conversations, and the officers’ written statements that some of their conduct was unprofessional. The DOJ used the recordings to corroborate existing evidence, the adjudicator said.
The fact that the DOJ collected evidence before accessing the recording was key to the latter being reasonable, according to Lejasisaks.
“It wasn't as if they were just monitoring the audio surveillance of the transport looking for employee misconduct,” he says. “The key was that it was reviewed in conjunction with interviewing witnesses in the investigation.”
“There are cases out there where surveillance evidence is excluded where the employees don't know they're being recorded and the employer is just sitting back looking to catch an employee doing something wrong,” adds Lejasisaks. “But where there's a legitimate investigation triggered by a complaint, this is this is a really good decision to say that corporate surveillance is likely to be admissible in a grievance hearing where it's part of an investigation.”
The adjudicator also found that the officers had no reasonable expectation of privacy in the vehicle because the inmate could overhear them. Given that it was reasonable for the DOJ to access the data, it was also reasonable to use it to support the termination decision, the adjudicator said in dismissing the grievance.
The test for reasonableness of employee monitoring includes whether it’s demonstrably necessary to meet a specific need.
Context of workplace
Lejasisaks cautions that context is important when an employer can access covert surveillance data.
“A prison is a unique workplace with heavy surveillance - if it's an office environment or a manufacturing facility, for example, an arbitrator might be less inclined to admit covert surveillance evidence if an employer has covert audio surveillance on a production line,” he says. “And for what purpose, like trying to catch employees speaking with each other about something, I think would be a much different context.”
If there is the possibility of surveillance of employees in the workplace, whether covert or overt, employers should have clear policies on it and employees should be informed, says Lejasisaks.
“A clear policy around what the employer is surveilling and how the surveillance is used is going to be the foundation,” he says. “More employers are likely to rely on surveillance, whether it's video, audio, electronic monitoring, GPS data from work trucks, but it’s important to consider all evidence in an investigation.”
“It's a topic that's going to continue to evolve and when an investigation is occurring, there’s a need to be creative and look at different sources for potential evidence,” says Lejasisaks. “But with that comes risks - any investigation, especially in a unionized environment, that's potentially going to result in termination needs to be done very well, dot all the I's and cross all the T's.”
