Video surveillance a tough sell in court

Courts and arbitrators have set the bar fairly high when it comes to using video surveillance to monitor a worker’s private life. Employers are often tempted to hire private investigators to conduct video surveillance of a worker on disability it suspects isn’t really injured. After all, the costs of disability are onerous. Canadian National Railway (CNR) recently used video surveillance against one of its workers in Winnipeg, using what it found to fire a worker who was on the job for 25 years.

But an arbitrator said the company had no justification to use video surveillance, that the evidence it gathered was anything but conclusive and ordered CNR to hire the worker back, awarding back pay and full seniority.

What happened to the worker?

Dennis Rudney was a car mechanic employed by CNR in Winnipeg. He was fired for the accumulation of demerit points after he was assessed 20 demerit points for allegedly performing physical activities at home which were incompatible with the physical restrictions placed on him by his family doctor.

On Thursday, May 12, 2005, Rudney reported an injury while handling an air brake valve during the course of his duties. The problem, described as shoulder pain which extended down his arm, was short-lived and was treated by the application of ice.

He worked the balance of that day as well as the following day. Rudney went to see his doctor on Monday, May 16, and provided the company with a note the next day that stated he could only use his left arm. As Rudney had previously been doing modified work involving both arms, CNR said it could not offer him any modified work.

The arbitrator said it appeared a supervisor asked Rudney for more information on his restrictions so the company could try to find him some other job or duties to perform. On May 26, Rudney gave the company updated information in the form of an attending physician’s statement. It indicated that he had suffered an injury to his right shoulder. It further explained that he had been referred to an orthopedic specialist and that he was directed to make “minimal use” of his right arm.

Rudney’s injury history

Between May 16 and May 26, the company made the decision to undertake video surveillance of Rudney. As part of its justification for that decision, CNR said he had recorded a greater than average record of work-related incidents which called for medical attention and, on occasion, lost time for which he occasionally received workers’ compensation benefits.

But the arbitrator had difficulty with that justification.

“It is true that (Rudney) suffered various injuries over the years,” the arbitrator said. “However, when the list of his work-related complaints is examined, it is important to appreciate that for a substantial part of the time he, like other employees, was under strict directions to report virtually any injury, such as bruises or minor cuts which might later develop complications. Most significantly, the record reveals that in a career spanning 25 years of service, Mr. Rudney recorded injuries resulting in a loss of working time on only four occasions, for an overall total of 14 days. Considering that one of those instances involved 10 days, the evidence falls far short of establishing that (he) was ever involved in malingering by reason of claimed injuries.”

Arbitrator has difficulty with CNR’s reasons for surveillance

The arbitrator also had difficulty with the company’s reason for conducting the surveillance. CNR did not suggest Rudney was faking his injury to receive compensation.

“Rather, as can best be gleaned from the totality of its case, (CNR) resorted to the surveillance to determine whether in fact (Rudney) was engaged in activities which went beyond the medical restrictions imposed upon him by his physician,” said the arbitrator. “In other words, in his private life was he over-exerting his right arm?”

Assuming, without finding, that Rudney was behaving recklessly by disregarding his doctor’s orders while at home, it was less than clear that CNR could assert any legitimate interest in that fact, the arbitrator said.

Videotape evidence not admissible

The arbitrator said CNR did not have reasonable or probable grounds to engage in the “extraordinary” step of subjecting Rudney to surveillance in his private life.

Even if the arbitrator had allowed the videotape into evidence, it is doubtful it would have helped CNR’s case. That’s because the content wasn’t very damning of Rudney.

“What the videotape discloses is that (he) greatly favoured his right shoulder and right arm,” the arbitrator said. “On occasion, he is viewed carrying objects of significant weight, such as a canister or a bottle. Although he is right-handed, he is plainly seen carrying such objects in his left hand. Nor does his digging of dandelions on his front lawn, with relatively modest use of his right arm and shoulder, disclose any significant departure from the directives of his physician, bearing in mind that those directives were clarified to mean that he should make minimal use of his right arm.”

Surveillance had negative impact on worker’s private life

The arbitrator called it “most troubling” that the company’s surveillance had negative repercussions for Rudney’s private life.

“Among the segments videotaped are periods in which Mr. Rudney attends at his church, where he is sometimes involved in the driving of other members of his congregation between their homes and their church,” the arbitrator said.

“It appears that upon learning of the surveillance to which he and they had been subjected, his friends from among the congregation thereafter refused to let him drive them. This, it does not appear disputed, has caused him a degree of isolation, pain and humiliation.”

The arbitrator ordered the 20 demerit points to be stricken from his record and that Rudney be reinstated, compensated for all wages and benefits lost with interest and without loss of seniority.

For more information see:

Canadian National Railway v. CAW-Canada, 2005 CarswellNat 4668 (Can. Arb. Bd.)

Video surveillance a tool of last resort

If there’s one thing clear from arbitration decisions involving companies that hire private investigators to follow employees into their private lives, it’s that it should be the exception, not the rule.

Video surveillance of a worker an employer suspects is faking an injury is an extraordinary step and arbitrators and courts will hold employers to an extraordinary standard to prove the move was justified.

Employers need to have solid evidence the worker is in fact malingering, before it starts surveillance and they can’t simply go on fishing expeditions in an effort to expose workers.

Employers should exhaust every other avenue available before even considering video surveillance and, even then, legal advice should be sought.

Some steps that arbitrators said should be considered include talking directly with the employee’s doctor to get a full understanding of the extent of the injury and the conditions placed upon the worker. Employers could ask the worker to go for an independent medical exam to assess the extent of the injury and the limitations.

That’s not to say this needs to be done in every case. There are some blatant circumstances of fraud and deceit that might justify surveillance, but an employer needs to tread carefully on this front.

When is video surveillance acceptable?

The arbitrator in the CNR case said it is incumbent upon the employer to establish two things if it wants to enter a videotape into evidence:

•it must show it had reasonable grounds to resort to surreptitious surveillance of an individual in his private life; and

•it must show the surveillance was conducted in a reasonable manner.

Pointing to an unreported arbitration award (SHP 548) between the Canadian Pacific Railway Company/Progress Rail Mechanical Services and the Canadian Auto Workers, the arbitrator said “there are situations in which an employer can and must resort to the surveillance of an employee, where compelling evidence would justify such extraordinary measures. However, it must first have reasonable grounds and should proceed in a careful and professional manner.”

Related articles

Video surveillance takes another knock: Covertly taping staff off-duty a tool of last resort.

Surveillance an ‘extraordinary’ step: Is hiring a private investigator to tail an employee reasonable?

The pitfalls of video surveillance: Secretly videotaping an employee is a powerful tool in exposing malingering, but courts won’t always allow it

Latest stories