Clandestine Surveillance Evidence Ruled Inadmissible

An arbitrator recently determined that evidence gathered through clandestine surveillance of an employee absent from work was inadmissible as the employer did not have a reasonable basis to conduct the surveillance.

The grievor, a long service employee with no discipline history, requested vacation time for October 9-11, 2013. The request was denied as other employees were already scheduled for vacation leave that particular week. Nevertheless, on October 9, the grievor called his supervisor and stated that he would be unable to report for work due to back problems. Based on its suspicion that the grievor was misusing sick leave, the employer hired a private investigator to conduct video surveillance of the employee’s activities during the week of October 9. The investigator filmed the employee in his yard and away from his house. As a result, the grievor was dismissed for fraudulently claiming sick leave and misusing weekly indemnity benefits.

At the hearing, the union objected to the admissibility of the video evidence on the basis that the employer’s surveillance was, in all the circumstances, unreasonable. In allowing the union’s objection, the arbitrator relied on BC privacy legislation, noting that for any surveillance to be justifiable, there must be reasonable grounds for it, and the surveillance must be conducted in a reasonable manner. The arbitrator concluded that in this case, there were less privacy intrusive means available for the employer to investigate its concern about potential sick leave abuse.

This case sounds a warning that employers need to approach surveillance of employees with caution and pay particular attention to the requirements of applicable privacy legislation.

Unifor, Local 433 v. Crown Packaging Ltd. (Giesbrecht Grievance), [2014] B.C.C.A.A.A. No. 43 (Dorsey)

Question relating to the content in this article should be directed to Frances Doyle, Partner.