Surveillance an ‘extraordinary’ step

Is hiring a private investigator to tail an employee reasonable?

Background

Secretly videotaping an employee is a powerful tool in catching workers who are abusing disability benefits. But determining when it’s an appropriate step to take can be a bit of a legal minefield.

Last year, in Ross v. Rosedale Transport Ltd., an adjudicator ruled the employer’s videotaping of an employee on disability leave was not reasonable because there was little evidence beforehand he was malingering. (See CELT #397, page 3099, Sept. 17, 2003.) In that case the adjudicator said videotape surveillance was an extraordinary step which could only be resorted to where there was, beforehand, reasonable and probable cause to justify it. In Ross the video evidence was tossed out despite the fact it showed the employee undertaking physical activities in excess of restrictions imposed on him by his doctor.

An arbitration decision in Alberta sheds light on what type of evidence is required before taking the extreme step of hiring a private investigator to tail an employee receiving disability benefits.

In A.T.U., Local 569 v. Edmonton (City), the Alberta Arbitration Board found the employer was justified in secretly videotaping an employee on disability leave. The board relied on that evidence in upholding the City of Edmonton’s decision to terminate the man for cause.

Transit worker fired

Donald Gerhardt was a transit dispatcher with 25 years of service and a clean record with Edmonton’s municipal transit system. He was fired on June 5, 2002. At the time of dismissal, Gerhardt was off on sick leave for non-work related problems with his back, foot and hearing and was receiving short-term disability benefits equivalent to his full salary.

The disability benefits were extended to him based on medical reports supplied to the city by his doctor. In alleging cause the city said Gerhardt had misrepresented his ability to return to work, had secured disability benefits inappropriately and refused a return-to-work plan.

In deciding to fire Gerhardt, the city relied on information it received regarding his activities while off on sick leave. One of Gerhardt’s co-workers had spotted his vehicle at a greenhouse. He knew Gerhardt was off on disability so he told his supervisor about what he had seen.

That information was relayed up the chain of command, and a decision was made to hire a private investigator to videotape Gerhardt based on that information and the fact Gerhardt had been not been co-operative with respect to a return-to-work plan. There was also suspicion Gerhardt might be in fact working at the greenhouse, or possibly was even its owner.

Piotr Baranowski, the director of disability management for the employer, said it was his decision to conduct the surveillance, a tactic he told the court is used as a last resort when it’s suspected someone is not telling the truth.

The private investigator hired by the city shot hours of video footage in May, and took a number of still shots, of Gerhardt doing work at the greenhouse. The arbitration board viewed some six hours of videotape in their entirety along with a seven-minute highlight reel.

Among other things, the videotapes showed Gerhardt:

•bending down picking up rocks;

•raking the parking lot in a vigorous fashion;

•bending over to plant seeds;

•shovelling material into a pail;

•walking around briskly;

•serving customers;

•carrying out purchases to customers’ vehicles;

•unloading large trees from a truck; and

•driving a forklift.

The employer argued this type of work was actually more physically demanding than his job with the city as a dispatcher. It saw no reason, based on the videotapes, Gerhardt couldn’t return to his dispatcher job or, at the minimum, to modified duties.

The city contacted Gerhardt and, without telling him about the videotapes, said he needed to return to work by May 27. Gerhardt did not show up for work. When contacted on May 29 he said he refused alternate work duties because he was not going to jeopardize his back, according to the city.

On June 5 his employment was terminated. After firing Gerhardt the city conducted a search of the trade names registry and found that he was a co-owner of the greenhouse he had been videotaped working at.

The most interesting aspect of this case from an employment law angle is how the board treated the videotape. The union tried to have the videotape thrown out, citing the Charter of Rights and Freedoms.

It argued the employer is obliged to comply with section eight of the Charter (“everyone has the right to be secure against unreasonable search or seizure”) and that surreptitious videotaping constitutes a search. The union cited a number of criminal cases where video surveillance was held to constitute an unreasonable search under section eight of the Charter. But in those cases the videotaping was conducted by police in private settings (a hotel room and a private apartment) where the accused were said to have a reasonable expectation of privacy.

The board found that, in this case, the surveillance was undertaken at a place of business open to the public and from public vantage points. The private investigator shot some footage from the parking lot, which is open to the public, and some from a nearby public road.

It said the manner of surveillance used on Gerhardt did not render it an unreasonable search under the Charter. It allowed the videotapes as evidence, and upheld the city’s termination of Gerhardt’s employment.

This case was decided in October of last year, prior to the federal Personal Information Protection and Electronic Documents Act (PIPEDA) that took effect on Jan. 1, 2004. It’s difficult to look back and determine whether or not PIPEDA would have impacted the board’s decision in this case had it been in force. Section 7(1) of PIPEDA provides that an organization may collect personal information without the knowledge or consent of the individual only if it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information, and the collection is reasonable for purposes related to investigating a breach of an agreement.

But employers would be wise to keep in mind that videotaping an employee is an extraordinary step that should only be used when there is strong evidence the employee is malingering, and even then legal advice should be sought.

For more information see:

Ross v. Rosedale Transport Ltd., 2003 CarswellNat 3620 (Can. Arb. Bd.)

A.T.U., Local 569 v. Edmonton (City), 2003 CarswellAlta 1961 (Alta. Arb. Bd.)

Doman Forest Products Ltd. v. I.W.A., Local 1-357 (1990), 21 C.L.A.S. 479 (B.C. Arb. Bd.)

The Doman test of reasonableness

The union argued the board should have applied the Doman test in determining the eligibility of the videotapes. The board rejected that notion, but said even if it had agreed, the facts in this case would have passed. The Doman test centres on the question of reasonableness as opposed to relevance alone. The questions to be considered are:

Was it reasonable in all the circumstances to request a surveillance? In A.T.U., Local 569, the union took the position the city initiated surveillance on the basis of rumours, perceptions and a personal dislike toward Gerhardt. But the board said the decision to conduct surveillance often arises on this very basis.

If the employer had hard evidence available, there would be no need for surveillance. At the time it was ordered there was, in the board’s opinion, more than rumours. Gerhardt’s vehicle had been spotted at the greenhouse, he was not home to take phone calls from the employer and he displayed reluctance in voluntarily exploring the possibility of returning to work on some basis, among other things. While none of these on its own would justify surveillance, the board said the aggregate of these elements made it reasonable.

Was the surveillance conducted in a reasonable manner? In the board’s opinion, it was. It can only be characterized as perhaps the least intrusive manner available when conducting video surveillance. It was all done from public locations, either from the street or a publicly available parking area.

Were there other alternatives open to the employer to obtain the evidence it sought? The board said any suggestion that an employer must inform an employee that he is under suspicion of abusing sick-leave benefits and will be put under surveillance has no basis in law or common sense.

Nor in this case would resorting to an independent medical resolve the situation. There is no question Gerhardt had medical problems with his back and foot. The employer accepted this as well as his hearing problems. This issue was not Gerhardt’s medical condition but rather his capabilities despite that condition as well as his activities relative to the greenhouse. This would hardly be disclosed in an independent medical. Given the employer’s concerns that Gerhardt might be involved in activities inconsistent with what he and his physician were reporting to the employer, it was not unreasonable for the employer to resort to surveillance to find out exactly what was happening.

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