Procedure to follow with indisputable evidence of misconduct
Question: If an employer has indisputable video evidence of serious misconduct by an employee (such as assault of a co-worker or customer), can it terminate the employee immediately without further investigation or interview?
Answer: When an employer is presented with what appears to be clear evidence of serious misconduct by an employee, it is natural to be tempted to move straight to dismissal without going through a seemingly pointless investigation or interview. However, this temptation ought to be resisted. As Justice Megarry put it in the 1970 English case of John v. Rees:
“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence events.”
Most of the time, simply meeting with the employee (and, in the union context, the employee’s union representative), putting the alleged misconduct to her, and providing an opportunity to respond, will be all that is required. Typically, this process will serve to confirm the employer’s understanding of what has occurred and fortify the employer in its view that it is appropriate to proceed to termination of employment.
In addition, an employer may discover that further investigation or interview sheds new light on what has happened or puts a different complexion on the matter. For example, video evidence may have failed to capture the fact that the employee was acting in self-defence based on events that occurred off-camera, or that the employee was subjected to verbal provocation which the video footage fails to convey. An awareness of this context might cause the employer to rethink its initial view as to the appropriate sanction to impose for the misconduct or, indeed, whether there was any misconduct by the employee at all. It is better that this occur before termination, instead of being revealed in a subsequent trial or hearing that results in liability for the employer that could have been avoided.
Conducting an investigation or interview may also expose additional facts that may warrant action by the employer. For example, the employer may determine that other employees were also involved in the misconduct. Or, in the example of the assault on a co-worker, the investigation may reveal a weakness in the employer’s workplace health and safety procedures which needs to be remedied to minimize the risk of liability under occupational health and safety legislation.
Before an employer acts on video surveillance evidence, it should always consider whether the evidence is likely to be admissible in a subsequent legal proceeding. Courts and arbitrators have grappled for some time with the challenges associated with admitting video surveillance evidence, given the effect such evidence may have on an employee’s privacy rights. On some occasions, this has led to video surveillance evidence being refused admission into evidence despite its high probative value.
A recent example in the labour arbitration context is Crown Packaging Ltd. The employee was dismissed for fraudulently claiming sick leave for three days, and the employer’s case was based on clandestine video surveillance evidence obtained by a private investigator. The arbitrator, after contrasting the more permissive approach to admissibility of video surveillance evidence that has dominated in Ontario with the stricter approach that has tended to prevail in British Columbia, ruled that the evidence was inadmissible.
The arbitrator found that the employer had not established reasonable grounds for the collection of the video surveillance evidence, and that the employee’s privacy rights had accordingly been violated. While the basic touchstone of admissibility of video surveillance evidence in grievance arbitrations — being the reasonableness of the employer’s actions in obtaining the evidence — is essentially the same across Canada, this case illustrates the importance of obtaining advice on how the relevant interests are likely to be balanced in the particular jurisdiction in which the employer is operating.
For more information see:
· John v. Rees, 2 All E.R. 274, [1970] Ch. 345 (Eng. Ch. Div.).
· Crown Packaging Ltd. (2014), 243 L.A.C. (4th) 423 (Dorsey).
Colin G.M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or [email protected].
