Union objects to video surveillance used in investigation
Three custodians under the employ of the Ottawa-Carleton District School Board were fired after allegedly smoking marijuana while on shift.
Conor Donnelly and two other employees were let go after video surveillance appeared to show all three smoking marijuana while standing adjacent to a school and wearing uniforms that identified them as employees.
This preliminary award handled whether the videotapes should have been submitted and considered as evidence — something that forms the bedrock of the school board’s case against its custodians.
Arbitrator Paula Knopf called the case unusual in that the union’s objection to video evidence rested primarily on the assertion that the surveillance was conducted contrary to the collective agreement and internal policy.
She concluded the opposite.
First, Knopf noted, context was important. Given that Donnelly was a custodian assigned to the evening shift at an elementary school, his responsibilities include maintaining cleanliness, general building and security upkeep, as well as recognizing and removing potential hazards or dangerous conditions.
He worked with machinery and equipment that had the potential to be harmful, and interacted with students, teachers, parents and other staffers.
Further, all custodians received training that explicitly named the "zero tolerance" policy for controlled or restricted drugs.
On the night in question, a supervisor was "pocket dialled" and he overheard a conversation between the custodians, who were discussing the means and method of smoking the illicit substance. The supervisor reported this to the CFO, who approved the installation of surveillance cameras in an attempt to catch the so-called drug trafficking happening on school property.
The cameras were also approved by the HR department.
When enough evidence presented itself, the custodians were fired and the Ontario Secondary School Teachers' Federation (OSSTF) filed a grievance, arguing the "covert" surveillance was improperly undertaken and contrary to the collective agreement. As such, the OSSTF asked that the discharge be declared void, or that the video and any derivative evidence be declared inadmissible in court.
This was a matter of privacy and it failed to comply with the board’s policies — namely, that the surveillance was designed to gather evidence, not to meet specified goals of enhancing safety, protecting property or identifying intruders, said the union.
The entire operation was not essential to the success of a possible criminal investigation. As the union saw it, the employer seemed more interested in catching an employee in the act, as opposed to taking immediate steps to intervene.
The school board maintained it held to its policies and because it had no indication of the complexity or extent of the alleged drug use, there was concern about trafficking and recruitment of other workers to the "ritual" use of drugs.
Knopf determined the employer committed procedural, not substantive, violations of its policy.
"A failure to document and a failure to set down parameters of a retainer are procedural omissions," she said in the decision.
"While intention is not a critical factor, it should not be ignored that the evidence supports the conclusion that the mistakes were made as a result of mistaken intentions or oversight… The existence of video recordings is not the ‘prejudice’ caused by the omissions."
Accordingly, given the procedural nature of the breaches and the fact that no prejudice was shown to be caused to the grievor, this was not a case where it would be appropriate to declare the discipline void or to exclude the contested evidence.
Knopf’s decision regarding remedy for the case at hand is forthcoming.
Reference: Ottawa-Carleton District School Board and the Ontario Secondary School Teachers’ Federation (OSSTF), District 25 Plant Support Staff. Paula Knopf — arbitrator. Stephen Bird for the employer, Joshua Phillips for the union. May 19, 2015.