The employer had videotape surveillance of a worker it felt was abusing sick leave. The union objected to its introduction. The arbitrator decided the issue on the test of reasonableness, not relevance, but allowed the evidence nonetheless.
Fired for allegedly misrepresenting the nature of injuries that she claimed were preventing her from attending work, a hotel laundry worker grieved.
At the outset of the hearing, the employer stated its intent to present video surveillance evidence documenting the off-hours activities of the grievor.
The union objected.
The parties requested a preliminary ruling on the appropriate test generally applicable to determine the admissibility of such evidence.
Arbitral case law on the admissibility of evidence derived from video surveillance follows two divergent lines. One line of reasoning stands for the test of reasonableness. It holds that for such evidence to be admissible, the employer must establish that it had a reasonable basis to put an employee under surveillance and that the surveillance was conducted in a reasonable manner.
The other test proposes that the relevance of the evidence is the only criteria: if the evidence is relevant, there is no other precondition to admissibility.
Arguing for the reasonableness standard, the union said that employees have a right to a degree of privacy in the employment relationship. The union acknowledged that the right is not absolute and that it must be balanced against the legitimate interests of the employer.
Intrusion into private lives
However, the union argued, absent a collective agreement provision limiting an employee’s right to privacy, an employer must demonstrate a compelling interest to justify an intrusion into the private life of an employee.
In support of this argument, the union cited Arbitrator Lynk in Prestressed Systems Inc. (2005): “[A]rbitrators have long held that employees have a general entitlement to lead their lives as they see fit outside of the workplace and during off-duty hours, absent some persuasive nexus to the employer’s legitimate workplace interests.”
The union said too that the ongoing nature of the collective bargaining relationship is better served by adhering to a standard of reasonableness in this context.
Trust and respect are fundamental to the success of the collective bargaining relationship, the union said. These values can be undermined if a lower standard of conduct leads to surreptitious behaviour on the part of one of the parties towards the other party in a collective agreement.
The employer argued that relevance was the appropriate standard to determine whether or not evidence derived from video surveillance should be admissible.
There is nothing inherently improper about video surveillance evidence to warrant its exclusion, the employer said. Moreover, to dismiss relevant evidence would violate natural justice by preventing one side in a dispute from presenting its evidence.
Reasonableness was the appropriate standard, the Arbitrator said.
The rejection of the relevance test was not rooted in a particular aversion to evidence derived from video surveillance, the Arbitrator said.
“Whether the surveillance evidence involves videotape, still photographs or simply the observations of a private investigator, the justification for the reasonableness test arises from the employer’s decision to place the employee under ongoing covert surveillance. An employee’s life outside the workplace, absent the establishment of a legitimate employer interest, is of no concern to the employer. When an employer intrudes into the private life of an employee by covertly monitoring the activities of the employee on an ongoing basis, the admission of evidence derived from the surveillance requires some level of justification.”
“Reasonableness” better for labour relations
The Arbitrator affirmed the union’s assertion of the significance of “reasonableness” in maintaining the collective bargaining relationship. Arbitrators do make decisions on the admissibility of evidence with a view to protecting labour relations, the Arbitrator said.
“Arbitrators have never adopted the viewpoint that all relevant evidence is necessarily [original emphasis] always admissible. In certain circumstances arbitrators have regularly excluded relevant evidence where the admission could cause harm to the collective bargaining relationship.”
The Arbitrator rejected the proposition that the rejection of the relevance standard must necessarily amount to a breach of natural justice.
“The adoption of the reasonableness test does not constitute the reckless rejection of relevant evidence. Rather it is a measured attempt by arbitrators, in the furtherance of harmonious labour relations, to strike an appropriate balance between important competing interests of the parties; and allows for the admission of relevant surveillance evidence provided that the decision to initiate the surveillance was, in the circumstances, reasonable and the surveillance was conducted in a reasonable manner.”
Reference: Intercontinental Hotel and United Food and Commercial Workers International Union, Local 333. Brian Sheehan — Sole Arbitrator. Elizabeth Kosmidis for the Employer and Aaron Hart for the Union. April 18, 2011. 17 pp.
