When video surveillance pays off

The issue of video surveillance of workers, and how courts and arbitrators have set the bar high for employers in proving this “extreme” step was necessary, has been covered extensively in past issues of Canadian Employment Law Today. The focus, though, has often been on cases where the video surveillance was conducted after hours in an attempt to catch an employee faking an injury.

Two recent arbitration decisions out of Ontario give examples of video surveillance conducted during working hours. In both cases the employer used what it found to terminate workers and in both cases arbitrators allowed the videotape evidence and upheld the terminations.

Case one: Drinking on the job

The first case involved a worker at Ontario Engineered Suspensions Ltd. in Blenheim, Ont., who was fired after he was observed drinking alcohol on the company’s premises during working hours on Oct. 22, 2004.

The employer had received a number of complaints from neighbours about drinking by employees in the company parking lot and the littering of beer bottles. The company carried out an inspection of the area and found numerous bottles scattered around and in garbage cans. At a meeting with the union on Sept. 8, 2004, management raised the issue that workers might be drinking on company property. It said it was concerned about damage to the company’s reputation. The union indicated it was not aware of the problem and would not condone it.

At the union’s suggestion, the company put out a notice to employees. A copy of the plant rules was delivered to each employee with their pay. Earlier, in August, the company had also sent a notice to employees specifically reminding them that it was expected they would stay within the building for the entire shift, including breaks and when they finished their work, until the shift was over. It stated that going to their cars on breaks or prior to the end of the shift was not permitted. The plant rules clearly stated that the sale, use or consumption of, possession, attempting to obtain or being under the influence of alcohol, illicit drugs or other intoxicants on the job or on company property would lead to disciplinary action.

In response to complaints about drinking in the parking lot, the company hired an investigation company to monitor the situation. On Oct. 22 employees were observed and videotaped drinking in vehicles parked in an area of the lot furthest from the plant. Six employees were identified by the company from the video and they were all subsequently fired.

The grievance filed by the Canadian Auto Workers in this case concerned one of the workers. The videotape showed this worker leaving the building at 9:44 p.m. He went to one of the three vehicles parked in the back of the parking lot where other employees were drinking. He returned to the plant at 10:43 p.m. and it was his evidence that he drank one beer during that time. He said his work for the shift was completed when he went out to the parking lot and he did no work upon his return.

The arbitrator in this case took a tour of the plant to get an idea of the working conditions. The company manufactures springs for use in the suspensions of vehicles, primarily light and heavy trucks and the military.

“The plant is hot and noisy,” the arbitrator said. “The furnaces reach temperatures of up to 1,900 degrees Fahrenheit and even when product cools to the point that it is not apparently red hot it is still extremely hot and can cause serious injury.”

It was a dangerous work environment and workers had to be on their toes at all times. The company’s workers’ compensation record was poor and the costs to the company were at the highest premium level with surcharges. The company was about to go through a “Work Well Audit” because of its injury experience.

“These are matters of great concern to the company and management witnesses testified that from this perspective they were extremely concerned about the potential effect of drinking on the premises in light of the company’s health and safety problems,” the arbitrator said.

The union argued the drinking the company discovered on Oct. 22 had been going on for years and the company had turned a blind eye to it, thereby condoning the behaviour. But the arbitrator didn’t buy that argument.

The drinking was not openly talked about at the plant. It did not involve union stewards or union officials. The arbitrator said the drinking was carried out in an “intentionally surreptitious” manner to avoid detection.

“The company can in no sense be considered to have condoned or turned a blind eye to something of which it was not aware,” the arbitrator said.

The fact the workers said they didn’t do any work after drinking didn’t help their case, the arbitrator said. The employer simply couldn’t remotely condone such behaviour, lest it risk sending a message to other employees that slipping out for a drink might be okay.

“The plant is a dangerous location and the (worker’s) physical presence in the plant after drinking created, of itself, a significant safety exposure,” the arbitrator said. Plus, these workers had to drive home after their shifts. “It would not be good for the company’s image and standing in the community if it had a reputation for sending employees away at the end of the shift in an impaired condition.”

The arbitrator said the worker in this case denied the conduct up to the point of the hearing. He displayed an attitude that it was no big deal and showed no particular remorse for what he had done or recognition that it was wrong other than because it violated a company rule.

The dismissal was upheld.

Case two: Elevator ride to nowhere

The second case involved two elevator mechanics who worked for Otis Canada Inc. The mechanics were fired for time theft after an investigator hired to follow them during work hours discovered they were doing little work.

One part of Otis Canada’s business is the repair and maintenance of elevators to ensure they are safe, clean, functioning and meeting legislative standards. One of the workers, Adam Smith, was assigned to a maintenance route — a series of addresses within a geographic territory. His job was to make regular visits to carry out routine maintenance and to test various components to meet regulatory standards.

In late 2003, the company became concerned about the quality and quantity of work being performed by Smith. He was not completing all the tasks on his route and was not properly reporting the work being performed. The company was also getting complaints from mechanics called to do emergency repairs on Smith’s route that the elevators were not receiving routine maintenance, leading to breakdowns and client dissatisfaction.

One of their largest clients hired an outside consultant to report on the state of its elevators. The report was quite critical of the level of maintenance and the cleanliness. As a result, the client threatened to end its contract with Otis.

The company decided to conduct surveillance on Smith to figure out how he was spending his time. At the hearing, the union objected to the use of surveillance, but the arbitrator said it was reasonable. Smith worked alone, off company premises, so there was no other reasonable way to investigate the employer’s concerns. All of the surveillance took place in public, mostly in parking lots at Tim Hortons, where the employee would have a low expectation of privacy.

In the three days Smith was followed, he made very few visits to buildings on his routes. He spent upwards of half of each day in various Tim Hortons and other restaurants. On one day he left 45 minutes early and went to a used car lot. On another, he left his route area for more than an hour to go back to the lot and test drive a car. The time sheets he filled out disguised his activities, suggesting he attended buildings the video shows he did not and exaggerating time he spent at buildings.

During the first day of surveillance, Smith was often in the company of another Otis employee. The investigator passed on the licence plate of the Otis vehicle to the employer, and it identified the worker as Peter Langan. Otis then decided to also put Langan under surveillance. Langan did not have a maintenance route like Smith, but was expected to be in a particular geographic area to respond to emergency calls. When not receiving calls, he was expected to carry out routine maintenance on buildings in the area.

“It was interesting to watch the videos,” the arbitrator said. “Neither Mr. Smith nor Mr. Langan ever seemed in any hurry to get anywhere. A 45-minute coffee break together was followed by a 15-minute chat in the parking lot. On one day, Mr. Smith spent more than an hour having breakfast … and then went to Tim Hortons for another half hour. Mr. Smith was regularly seen reading the newspaper in his car, maybe only for 10 or 15 minutes, but often.

“One morning Mr. Langan went for lunch before noon, filled his car with gas, went to a jobsite but did not enter the building, returned to the gas station, washed his car, met Mr. Smith at Tim Hortons and then went home, an hour and a half early.”

The arbitrator said there was ample evidence the workers stole time from the company. But did it merit discharge? Both workers had more than 30 years’ experience in the elevator industry, but had only been with Otis for a couple of years. Neither had a disciplinary record.

“But the offence is serious,” the arbitrator said. “The misconduct took place in each of the five days they were observed, so it is not a one-time incident. They covered up their misconduct in how they filled out their time sheets. Neither recognizes that they have engaged in misconduct, except that Mr. Smith acknowledges that he should not have gone to the used car dealership during the work day … neither seems to appreciate the seriousness of the offence, which is quite troubling to me.”

The arbitrator pointed out that elevator mechanics perform a very important public safety job.

“Neither the public, or Otis should have to worry that the mechanics it hires are not doing their assigned work and are covering up their failure to perform it,” the arbitrator said. Therefore the dismissals were justified and the grievance was dismissed.

For more information see:

Ontario Engineered Suspensions Ltd. v. C.A.W.-Canada, Local 127, 2005 CarswellOnt 8217, 142 L.A.C. (4th) 273 (Ont. Arb. Bd.)

I.U.E.C., Local 50 v. Otis Canada Inc., 2005 CarswellOnt 8235, [2005] O.L.R.B. Rep. 1024 (Ont. L.R.B.)



When is surveillance reasonable?

In the Otis decision, the arbitrator referred to Securicor Cash Services and Teamsters Local 419, a 2004 arbitration decision. In that case, the arbitrator said the test of “reasonable” surveillance requires a “balancing of the employer’s reasons for wanting the surveillance and the methods used against the degree of intrusion into the employee’s private life. In all cases, the surveillance must be motivated by a need to assist the employer in the administration and management of the workplace. In other words, there must be a legitimate business reason to undertake the surveillance.”

In assessing whether the method of surveillance used in that case was appropriate, the arbitrator said that “where an employer has a legitimate need to collect information about an employee, there is a greatly reduced expectation of employee privacy in a public place and such surveillance will be reasonable. That does not necessarily mean that all public employee surveillance is reasonable.” The arbitrator suggested that without a legitimate business reason, the permanent stationing of a video camera outside an employee’s house would not be reasonable, even though it was a public place.

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