Canada: British Columbia Labour Arbitrator Rules That Video Surveillance Obtained As Part Of Suspicious Sick Leave Investigation Was Not Admissible As Evidence

Unifor, Local 433 v. Crown Packaging Ltd., Collective Agreement Arbitration under British Columbia Labour Relations Code [2014] B.C.C.A.A.A. No. 43

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. Giesbrecht's privacy.

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 doctor's note.

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 11th.

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 physician.

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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