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
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
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
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
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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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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