Regrettably, some employees choose to consume alcohol and/or
illegal drugs while at work. They may do so because they have
an addiction or they may do so simply because they like to and
don't feel they will get caught. When an employee gets
caught doing so, they may, depending on the nature of their
workplace, reasonably expect to lose their job as a
result. When the workplace is a public school, the likelihood
of dismissal is understandably heightened.
However, in order to defend such a dismissal, the employer must
prove its case.
As workplace drug and alcohol use is often difficult to detect,
some employers resort to covert surveillance. When employees
are dismissed as a result of such surveillance evidence, unions
often argue that the surveillance evidence ought not to be
admitted, typically on the grounds that to do so would infringe the
employee's right to privacy.
A recent Ontario arbitration award offers a solid approach to
the admissibility of such evidence in a unique context in which the
parties' collective agreement set out restrictions on the
gathering of such information.
The case involved a night shift public school custodian who
smoked marijuana at work, despite the fact that he had been trained
in the employer's zero tolerance of drugs in the
workplace. When his employer heard rumours of such
consumption, it elected to engage a third party to conduct covert
surveillance and report any illegal drug use. When the
surveillance proved the custodian had smoked marijuana at school
during working hours, while in uniform, his employment was
In challenging the custodian's termination, the union argued
as a preliminary matter that the video surveillance evidence, which
had been gathered (somewhat) in violation of the collective
agreement's restrictions, ought not to be admitted into
The employer argued that the surveillance evidence ought to be
admitted solely as a result of its relevance and that any
collective agreement violations resulting from the carrying out of
the surveillance was not fatal to the employer's case.
In assessing the matter, the arbitrator weighed the competing
interests of the employee's alleged right to privacy against
the employer's reasonable interests in maintaining a safe and
drug free school environment.
In assessing the employee's privacy interest, the arbitrator
noted that the location and context of the surveillance are
important. In this case, the arbitrator determined that the
employee had a very low expectation of privacy in that his
misconduct occurred while at work, in uniform and in a manner
visible to the public.
As for the employer's interests, the arbitrator found that
it had engaged in surveillance in a reasonable manner and for a
reasonable purpose. Further, despite the employer's
failure to comply with the collective agreement's (procedural)
provisions relating to video surveillance, the arbitrator found no
prejudice to have been suffered by the employee.
As a result, the video surveillance evidence was admitted.
This case lends support to employers' right to engage in
reasonable workplace surveillance and to act upon the information
gathered as a result. In doing so, the case appropriately
downplays the notion that employees have a reasonable expectation
of privacy at the workplace.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).