On April 13, 2014, British Columbia Labour Arbitrator James E.
Dorsey was asked to decide whether Crown Packing Ltd.
("Crown") could rely on video surveillance evidence to
justify its dismissal of Warren Giesbrecht for claiming fraudulent
sick leave. Arbitrator Dorsey found that Crown could not rely on
this evidence: it was unreasonable in the circumstances for Crown
to obtain video surveillance and a violation of Mr.
Mr. Giesbrecht had worked for Crown 34.5 years before he was
dismissed. In September of 2013, Mr. Giesbrecht requested October 7
to 11 as vacation time. Thanksgiving Monday was October
14th. Vacation leave for October 7 and 8th
was approved. The remaining three days were not.
On Friday October 4, 2013, Mr. Giesbrecht reported to first aid
at Crown that he had back pain. He was off as expected on October 7
and 8. On October 8th, he again requested vacation leave
for the rest of the week. This request was denied. On the morning
of October 9th, Mr. Giesbrecht called in sick for his 3
o'clock shift. He said he had a back problem and had obtained a
Crown was suspicious in light of the repeated vacation leave
requests. It had also obtained information that Mr. Giesbrecht was
planning a road trip. Mr. Giesbrecht, however, was not known to be
a sick leave abuser: he had taken only eight sick leave days in the
previous three years. On October 9, 2013, Crown hired a private
investigator who started video surveillance. Mr. Giesbrecht brought
the employer a doctor's note on Friday October
On the basis of the video surveillance, Mr. Giesbrecht was
dismissed by Crown for fraudulently claiming sick leave. The union
grieved his dismissal.
As a preliminary matter at the arbitration, the Union argued the
surveillance evidence should be excluded on the basis that Crown
did not have reasonable grounds for obtaining it. Crown, on the
other hand, argued that the surveillance evidence should be heard
and admitted into evidence if it was found to be relevant.
Arbitrator Dorsey first considered the provisions of the
Personal Information Protection Act ("PIPA") of
British Columbia. Section 13(2)(b) of PIPA allows employers to
collect employee personal information without consent where
"the collection is reasonable for the purposes of
establishing, managing or terminating an employment relationship
between the organization and the individual." He also
considered arbitral jurisprudence with respect to the admissibility
of video surveillance evidence.
Arbitrator Dorsey concluded that Crown did not have grounds to
collect Mr. Giesbrecht's personal information without consent
under PIPA and as such, the video surveillance was an unauthorized
privacy violation. He concluded at paragraph 72, that "a
suspicion cannot be a reasonable basis for an employer to undertake
clandestine surveillance away from work of an employee with whom
the relationship does not heighten or give the suspicion more
credence". As Mr. Giesbrecht was not a problem employee, Crown
could have tested its suspicion through less intrusive means: for
example, requiring Mr. Giesbrecht to deliver his doctor's note
personally or request his consent to confirm that he had visited a
In light of these findings, Arbitrator Dorsey determined that in
light of legislative scheme protecting privacy, it was appropriate
for him to exclude the video surveillance evidence even though it
may have been relevant and/or confirmed Crown's suspicions that
the sick leave was fraudulent.
Arbitrator Dorsey, like Arbitrator Schmidt in a decision
recently addressed in this blog, restrictively interprets the
circumstances in which an employer may rely on the investigation
exception to consent found in privacy legislation. In both cases,
the arbitrators assessed the reasonableness of undertaking video
surveillance against the other investigative means available. Both
found that other investigative steps were available to the employer
and should have been taken before resorting to video surveillance.
These decisions indicate that employers will have to meet a high
threshold in order to show that obtaining video surveillance
evidence was reasonable in the circumstance.
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