Caught on candid camera

A bus operator for the Corporation of the City of Niagara Falls was suspended for three days without pay after it was discovered he obstructed the security camera on his bus, handled cash and used a hand-held device while behind the wheel.

Ken Kissmann’s behaviour came to light after a passenger contacted the employer about a slip-and-fall accident in November 2014. The employer checked its hard-drive but by that time the video for the date of the accident had been over-written by more recent recordings.

The employer did notice, however, the available footage showed Kissmann tampering with the
on-board camera by placing two transfer tickets in front of the lens in order to prevent it from recording his activities. Kissmann was also recorded handling cash and using a hand-held device while behind the wheel of the bus.

The employer found a total of 12 instances of Kissmann tampering with the video camera, using a hand-held device or handling cash between Sept. 6, and Nov. 25, 2014. It was concluded Kissmann had violated the employer’s policies and, in the case of using a hand-held device behind the wheel, had also violated provincial legislation.

Before taking action against Kissmann, a supervisor checked on his bus to confirm the video camera was being blocked. On Dec. 5, 2014, the supervisor intercepted Kissmann on his route and saw the camera was indeed being covered by paper. The supervisor questioned Kissmann, and he denied putting the paper there himself.

The employer interviewed Kissmann on Jan. 16, 2015, to discuss the incidents. Kissmann did not admit to blocking the camera, but said he had not blocked the camera since his encounter with the supervisor on Dec. 5. Kissmann was suspended without pay for three days. Although he had no previous discipline with the employer, concern about Kissmann’s distracted driving compromising passenger and public safety contributed to the severity of the discipline.

The Amalgamated Transit Union Local 1582 filed a grievance against the employer after Kissmann was suspended on Jan. 19, 2015. The union argued the parties’ collective agreement prohibited the employer from using the on-board video system to check on employees’ performance and conduct, or to generate evidence of employee wrongdoing.

The union argued that, in the absence of the video on the bus, the employer would have had no idea of Kissman’s alleged misconduct and therefore would have had no reason to implement discipline.

Kissmann admitted to blocking part of the on-board camera during his testimony. He said he was careful to avoid interfering with the filming of other parts of the bus, only blocking the driver’s compartment from view of the camera. Kissmann referred to the paper as a "privacy screen," saying he was concerned about the collection and storage of the video by the employer.

The union argued the video and everything from the video should be excluded. While the union conceded the employer was justified in checking the video for the date of the slip-and-fall accident, it argued there was no reason to check the video for any other dates. The bus was the workplace of the operators, and the union argued it was unreasonable that they should be subject to such constant and intrusive surveillance.

Arbitrator Michael Bendel agreed the parties’ collective agreement prevented the video cameras from being used for any purpose other than security. As a result, he ruled the video in question was inadmissible.