CCTV watched workers but not allowed for discipline

Saskatchewan store manager’s use of surveillance inappropriate: arbitrator

CCTV watched workers but not allowed for discipline

A Saskatchewan employer violated employee privacy rights and its own policy when a manager used surveillance footage to measure employee job performance, an arbitrator has ruled.

Pioneer Co-operative Association operates various retail locations across Western Canada. In 2011, a location with grocery retail in Saskatchewan installed a closed-circuit television (CCTV) security system. The union advised that “the use of such equipment cannot be used to supervise or discipline staff as this would result in the invasion of privacy and would be in violation of the Privacy Act.” Pioneer agreed and noted that its “Asset Protection Policy – Video Recordings” stated that “cameras will not be used to capture images for the purpose of measuring employee job performance.”

However, three cashiers claimed that at their performance reviews in December 2019, the grocery department manager showed them photos of cashiers taken from surveillance footage. They felt uncomfortable about it and also felt that they were always on camera, as the CCTV cameras were pointed towards them while they worked. Sometimes the manager called their tills on the house phone to criticize their behaviour in real time — although the manager claimed he always made such calls from the floor where he could see the tills, not from the office.

On another occasion, an employee reported that the CCTV monitor screen was being left on and could be viewed by anyone who entered the grocery office. The manager decided to turn it off in early 2020, because “it would be easier if it was off.”

On Feb. 25, 2020, a customer contacted the store about not having received a carton of eggs that he had paid for. The manager reviewed the CCTV footage of the till used for the transaction to see if the eggs had been bagged for the customer. At one point, the footage showed three cashiers clustered together having a conversation. The manager felt that this constituted workplace socializing that he had instructed employees not to do while working.

He paused the video and took a picture of the scene with his cellphone, figuring that he could use it for coaching purposes. Over the next couple of days, he brought the image up on his computer monitor to discuss with each of the cashiers.

The union filed a grievance alleging a violation of employees’ “right to privacy in a number of ways including, but not limited to, taking photos without their knowledge and consent.” Pioneer indicated that it instructed the manager that “his actions were not an appropriate use of the video surveillance and not in accordance with the Pioneer Co-op’s policies.”

The arbitrator noted that several employees felt like they were being monitored and the evidence was that Pioneer’s asset protection policy had not been disseminated to employees. As a result, “the unexplained presence of a handful of CCTV cameras staring down at them” created the sense for employees that they were being observed and evaluated.

The arbitrator found that, regardless of the manager’s explanations for criticizing employees as they worked in real time, the CCTV cameras were being used in part to monitor employee performance, contrary to both Pioneer’s policy and the employees’ privacy rights. This was confirmed when the manager took a photo of a frame of footage from the cameras and used it directly to coach cashiers about socializing while on the job. This was direct evidence that that CCTV footage was used to supervise and evaluate job performance in violation of the Privacy Act and the company’s own policy, the arbitrator said in declaring that Pioneer engaged in a continuous violation of cashier’s privacy rights.

Pioneer was ordered to prominently post on its bulletin board a statement that its CCTV system respected employee privacy rights by prohibiting the use of cameras to capture images for the purpose of measuring job performance.

Reference: Pioneer Co-operative Assn. and RWDSU, Local 950. Ken Norman — arbitrator. April 13, 2021. 148 C.L.A.S. 125

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