By Derek Knoechel
Canadian arbitrators have been dealing with the issue of how to deal with video surveillance of employees for over two decades. Early decisions dealt with off-site surveillance of employees suspected of faking or exaggerating illnesses. But countless battles have since been waged over the use of video surveillance cameras in and around the workplace. When can such equipment be used in the workplace? When can the resulting evidence be relied upon?
Video cameras in the workplace
There have been numerous skirmishes over the use of security cameras covering entrances and exits to the worksite and other nonworking areas. The use of hidden cameras at the worksite as part of an investigation also has been the subject of much controversy. By far the most fever-pitched battles have been over the surveillance of production work, monitoring employees for disciplinary reasons, or conducting surveillance of social or sensitive areas of the workplace.
In each instance, the employer’s property rights and right to manage the workplace has been weighed against employees’ privacy interests. Those privacy interests find some support in privacy legislation and Canada’s Charter of Rights and Freedoms, where applicable. There has been considerable debate, particularly in Ontario, regarding whether there exists a freestanding legal right of privacy in unionized workplaces. Despite this debate, in English Canada a general consensus has begun to emerge among arbitrators that more intrusive methods of employee monitoring such as video surveillance will be permitted only if it’s justified and reasonable in the circumstances.