In Fairmont Royal York Hotel (2011), 215 L.A.C. (4th) 62 (Trachuk), the employer had received employee complaints that one of the chefs was drinking, using drugs and behaving aggressively and erratically when working on the evening shift.. Although management monitored matters, it was unsuccessful in detecting any wrongdoing. As a result of a further employee complaint and other related concerns, a decision was made to consider engaging a professional investigator. It was ultimately decided that the cleaning contractor would place an undercover investigator on its’ night crew. If improper conduct was observed, videotaping would commence using a pinhole camera located in a button on the investigator’s shirt. The evidence that was gathered ultimately led to the termination of 19 employees.
The collective agreement obligated the employer to exercise its management rights “in a reasonable manner that is consistent with the terms and conditions” of the collective agreement. The employer contended that such obligation was limited to the enumerated rights in the management rights clause and that given that the clause was silent with respect to surveillance, there was no collective agreement reasonableness requirement that must be met in utilizing video surveillance.
Arbitrator Trachuk commented that the arbitral jurisprudence was divided regarding the admission of surveillance evidence. Without reviewing the rationale underlying the implied reasonableness test for the admission of surveillance evidence, she held that the collective agreement mandated an explicit test of reasonableness:
… Even arbitrators who reject the reasonableness requirement acknowledge that an employer will not be permitted to rely on video surveillance if that evidence has been obtained in contravention of the collective agreement … Discipline and discharge for just cause are included in [the management rights clause]. The use of surreptitious video surveillance to acquire evidence to support a discharge for cause is, therefore, an exercise of the enumerated management rights. Thus, the use of surreptitious video surveillance for such a purpose is subject to the requirement of reasonableness … The company must, therefore, have acted reasonably in making the decision to engage in surreptitious video surveillance. It must also have acted reasonably in the manner in which the video surveillance was conducted.
The arbitrator concluded that this “explicit” requirement for reasonableness relieved her of having to decide whether there was a free standing or implied right to or interest in privacy in Ontario that would give rise to the imposition of a reasonableness requirement.
In concluding that the decision to initiate surveillance was reasonable, the arbitrator considered that the employee complaints gave the employer sufficient cause to believe that significant misconduct was occurring. Moreover, the investigator engaged by the employer did not commence video surveillance until such time as misconduct was observed.
The use of video surveillance in the employee change room was considered to be unreasonable and therefore inadmissible, with the arbitrator stating that. “… The reasonableness of ‘filming’ in the change room must be determined on the basis of what might reasonably have been captured as a result of having a camera in that location as opposed to what was actually recorded.” The arbitrator commented that even though such footage would be inadmissible, it would nevertheless be permissible for the undercover investigator to testify about observations made in the change room.