llness and Absenteeism.com - March 2012 Newsletter
In this edition you will find...
An arbitral divide exists regarding the admissibility of covert employee surveillance. Whether such evidence will be admitted in a particular case may depend on the choice of arbitrator, and to a lesser extent, the legislation of the governing jurisdiction.
There are two distinct approaches. The “relevance approach” parallels that of the civil courts. Generally, all relevant evidence is considered admissible, subject to any recognized common law exceptions (for example, privileged communications) and any statutory or collective agreement provisions prohibiting its admission. This approach has been receiving growing acceptance among arbitrators.
In contrast, the “reasonableness approach” considers whether the employer’s decision to initiate surveillance was reasonable, and if so, whether the surveillance was conducted in a reasonable manner. The inquiry may involve a consideration of whether options to surveillance should have been employed prior to initiating surveillance. Where the employer fails to prevail on these points, the evidence is ruled inadmissible.
The reasonableness test was first articulated in British Columbia in 1990. It was adopted to balance the employer’s business interests with the privacy restraints set forth in the British Columbia Privacy Act. Arbitrators in other jurisdictions found the approach to be philosophically attractive and were quick to adopt it, often despite the absence of any privacy legislation in their own jurisdiction. Many did so without considering the legislative framework that gave rise to the test. Others found that a rationale for engaging in a balancing test could be found in privacy considerations that arose from what they termed the “common law of the workplace.” Still others purported to find a privacy right based on implied terms derived from the specific provisions of a collective agreement.
Most arbitrators who embrace the reasonableness approach have acknowledged that there is no right to privacy in a public place, and therefore, no justification for imposing a reasonableness test prior to admitting surveillance evidence compiled in such a locale.
The relevance approach has received considerable support from the courts. They have consistently held that statutory provisions that empower an arbitrator to consider evidence, whether admissible in a court of law or not, do not extend to permitting an arbitrator to reject evidence that would otherwise be admissible. Unless a statute prohibits the admission of such evidence, then the evidence is to be admitted, and any remedies that the employee may have for breach of privacy are to be pursued by way of an action for damages.
Two recently reported arbitral decisions from Ontario have rejected the application of the reasonableness test.
In Windsor Essex County Health Unit1, arbitrator Williamson rejected the union’s submission that the reasonableness test had become part of the common law of the workplace. In reviewing the competing lines of arbitral jurisprudence, he commented that arbitrators Brandt, Shime and Crljenica had recently reconsidered their positions and adopted the relevancy test rather than the reasonableness test that they had previously employed. In adopting the relevancy test, he noted that there was no underlying justification that would support the “reasonableness test”:
I am not persuaded that there exists in Ontario a general right to privacy such that it would preclude the observing of a person’s presence or activities in public, the documentation of such presence or activities, or the photographing or video recording of such presence or activities. Neither am I able to find that there exists a general expectation of such a privacy right in public places in Ontario. Nor, in the matter of the instant case am I able to find that the collective agreement between the parties contains language that would preclude the employer from observing, documenting, photographing, or video recording an employee’s presence or activities in a public place, or that would preclude the employer from monitoring an employee’s work activities during working hours.
In admitting the evidence based on relevancy, the arbitrator noted that both the Ontario Court of Appeal and the Supreme Court of Canada had concluded that there was no principled basis for an arbitrator to exclude surveillance evidence that was otherwise relevant.
Arbitrator Herman, in Toronto Catholic District School Board2, found that videotape surveillance, openly recorded in school hallways, was admissible in support of discipline imposed on a caretaker for having failed to perform her duties. The surveillance did not violate the employer’s unilaterally-adopted policy that “Video surveillance shall not be used for monitoring staff performance”, for in this instance, the “videotapes were not reviewed as part of a pre-existing monitoring process, but as a search for evidence with respect to particular allegations against the grievor, allegations the grievor denied and that the Board, on reasonable grounds, believed to be true.” Arbitrator Herman concluded his analysis by commenting that even if the employer’s reliance upon the videotapes was in breach of the employer’s policy, it would nevertheless be “detrimental to a full and fair hearing to preclude either party from seeking to rely upon the arguably relevant videotape evidence.”
A recently rendered decision of the Court of Appeal for Ontario3 falls short of articulating a general right to privacy. In that case, a bank employee brought a civil action against a fellow employee for having improperly accessed her private banking records on over 170 occasions spanning several years. The action was initially dismissed on the ground that the law in Ontario did not recognize that damages were recoverable for a breach of privacy.
The Court of Appeal allowed the action. In doing so, it acknowledged that it was expanding the common law by creating a remedy to redress claims of this nature. In adopting the American tort of “intrusion upon seclusion”, the court stated that “recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.” The court adopted the definition of this tort as set forth in a treatise of United States common law:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
The court made it clear that it was advancing an incremental development in the common law. It commented that it should restrict itself “to the particular issues posed by the facts of the case … and not attempt to decide more than is strictly necessary … A cause of action of any wider breadth would not only over-reach what is necessary to resolve [the] case, but could also amount to an unmanageable legal proposition that would … breed confusion and uncertainty.”
The court defined the key elements of this newly recognized cause of action:
The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action.
The court stated that the newly recognized tort had limitations:
A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.
The court also recognized that “claims for the protection of privacy may give rise to competing claims … Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, … competing claims.”
The decision is interesting for what it did not decide. More particularly, it did not decide that employees in Ontario have a general common law right to privacy, nor did it decide that individual’s have a right to privacy when in a public place. By inference, the court has accepted that neither of these rights currently exist at common law. The decision therefore appears to offer little support to those Ontario arbitrators who have adopted a reasonableness test governing the admissibility of covert surveillance evidence.
(1)Windsor-Essex County Health Unit (2011), 208 L.A.C. (4th) 392 (Williamson)
(2)Toronto Catholic District School Board (2011), 209 L.A.C. (4th) 325 (Herman)
(3)Jones v. Tsige, 2012 ONCA 32 (decision released January 18, 2012)
Summaries and particulars of several recent decisions of interest are available on line to subscribers of Illness and Absenteeism: A Manual for Human Resource Personnel, Union Representatives and Labour Practitioners. Among the cases reviewed are the following:
A termination of a chief union steward was upheld pursuant to a clause that deemed an employee to be terminated where the employee was absent for three consecutive work days without first securing the employer’s permission. The arbitrator found that he did not have jurisdiction to interfere with the specified penalty and that, unless the employee can establish that it was impossible to comply with the provision, or the provision specifically contemplates it, “the bona fides of an employee’s reasons for being absent without leave are irrelevant.”
The Ont. S.CJ. (Div. Ct.) upheld an arbitrator’s decision which concluded that cursory medical notes were insufficient, in the circumstances, to establish the employee’s entitlement to sick pay. The court also concluded that presentation of a valid medical note did not shift the onus to the employer. “The onus remains upon the Union to establish that the Employer has breached the collective agreement.”
A grievor who repeatedly refused to undergo a psychiatric assessment was reinstated on the basis that the employer did not have a compelling reason to demand such an examination, in that angry and threatening statements made over the course of a few moments, standing alone, and in the context of a 26 year career, did not give the employer reasonable cause to believe that the employee was truly a threat to the health and safety of others in the workplace. Despite that finding, the arbitrator concluded that the extensive delay occasioned by the union’s failure to move the matter forward was reason to conclude that the employee should not receive any compensation for wages and benefits lost during that period.
An employer’s denial of a promotion from a seasonal to a full-time position was upheld on the basis of a clause that provided “when employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work.” The arbitrator found that “Given that the position under consideration involves, at its core, a commitment to work full-time hours, it was more than reasonable for the Employer to require a satisfactory attendance record as part of the qualifications for the job in the job posting, and to consider the attendance record of the grievor, as it did.”
In an application for production of internal union documents, the arbitrator affirmed that there is no recognized category of “labour relations privilege” which precludes the production of relevant documents. She found that the documents were relevant and that all four aspects of the Wigmore test were met. Production was ordered on conditions and subject to a direction that documents relating to negotiations may be redacted so that only those portions relating to the matters at issue need be produced.
An employer’s grievance seeking an order for repayment of Workplace Safety and Insurance Board benefits and employer top-up payments fraudulently obtained was upheld against a former employee who was a discharged bankrupt. The arbitrator accepted that he was bound by the medical assessment contained in the decision of the Workers Safety and Insurance Board. The discharge from bankruptcy did not erase the debt owing because the overpayments had been induced by the employee’s false pretenses or fraudulent misrepresentations within the meaning of the Bankruptcy and Insolvency Act. The arbitrator concluded that the grievor was not credible, and that fraudulent statements to counsel or a representative are not shielded by the doctrine of privilege. A negative inference was drawn from the union’s failure to call the bargaining agent representative to testify about his first-hand knowledge that would have supported or implicated the grievor on specific contentious points.