In a preliminary award, an Ontario arbitrator allowed covert video surveillance footage to be used as evidence in a wrongful dismissal grievance. The complainant, Mr. Donnelly, was one of three elementary school custodians dismissed for allegedly smoking marijuana, adjacent to school grounds during working hours.
The wrongful dismissal case between Ottawa-Carleton District School Board and Ontario Secondary School Teachers' Federation, District 25 (Donnelly Grievance) was mediated by Arbitrator Knopf.
The three dismissed custodians were reported by a fellow employee who maintained alleged marijuana use and trafficking, while at work. Following the report, the Board's Director of Human Resources sought approval to hire a private security company to conduct covert video surveillance. The surveillance team was strictly instructed to record only illegal drug use within the vicinity of the school. Following such footage being obtained, the complainant was reprimanded and his employment terminated by the Board.
In Donnelly's defence, the union highlighted the failings of the surveillance footage in adhering to the Board's policies and procedures. The union maintained that the security company had failed to deliver the video evidence in a secure manner, without proper documentation of the approval process. They argued the video evidence be inadmissible, as policy permitted video surveillance, only to enhance safety, protect property or identify intruders, and not to collect dismissal evidence. Furthermore, they contended such covert video surveillance should only be used as a last resort, which this was not.
Privacy rights were taken into account when assessing the admissibility of the video footage, however, Arbitrator Knopf accepted the evidence in light of the management's right to provide a safe workplace. She decided this was a last resort situation, and the former employee had a low expectation of privacy since he allegedly performed illegal drug use and trafficking in a public space, while at work, and wearing a work uniform. She said that the Board had a reasonable basis to carry out the surveillance, amid credible allegations of illegal behaviour on school grounds.
Arbitrator Knopf found the Board had largely complied with their policies and procedures regarding surveillance, despite failures in documentation and security issues. She determined that the failings in gathering the evidence were relatively minor in comparison to the substantive policy authorizing the covert surveillance. She also stressed the fact that there was nothing in the Board's policies and procedures to justify the omission of the evidence.
Concluding, Arbitrator Knopf elected not to void the termination nor discard the covert surveillance footage, as she could find no evidence of prejudice towards the complainant.
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