Technological developments and the need for employers to monitor
employees' activities and to minimize accidents and hazards
require constant adjustments in order to respect the right to
privacy. While it may be tempting for employers to replace old
surveillance methods with new technologies capable of watching
their personnel's every move, the inclination to use easier and
more reliable ways of supervising employees must nonetheless not
violate employees' right to privacy, which, while being more
limited in a work context, nevertheless exists.
In a recent Quebec arbitration ruling, Sysco, a food delivery
company, had decided to install a DriveCam® safety program
inside the drivers' cabins of its trucks in Quebec. The Union
disagreed with the introduction of this new surveillance measure
and filed a grievance to have said cameras removed, alleging that
they were not only violating the truck drivers' rights to
privacy and dignity, but that they were also leading to unfair and
unreasonable working conditions. In addition, the Union claimed
that Sysco had failed to establish serious motives which would
justify its resort to the use of such invasive surveillance,
especially considering the existence of a no fault system
in Quebec. On its end, Sysco claimed that it was justified to
install the cameras as they were meant to (i) be used as a training
tool for the drivers, (ii) increase and encourage safe driving and
(iii) assist with liability determination or exoneration in case of
In ruling that Sysco was not justified in installing those
cameras and ordering that they be removed, the Arbitrator used a
two-fold analysis. First, did Sysco have a specific problem that
needed to be addressed with these cameras? Second, were these
cameras the only way to fix the alleged problem, or was there a
less intrusive way to achieve similar results?
On the first part of the analysis, the Arbitrator found that
Sysco had failed to establish that it had an existing problematic
situation that needed to be fixed. The employer's concern for
prevention regarding safe driving and liability determination or
exoneration did not constitute strong motives for which the
surveillance would be warranted. Considerable risks revealing an
existing problem would have been enough to establish the presence
of a problem, but Sysco had not established such a problem. For
example, a widespread problem having to do with alcohol or drug
consumption during working hours would have constituted a great
risk in the matter of safe driving.
With respect to the second aspect of the analysis, Sysco's
concern could easily have been addressed by other less intrusive
means, such as training, random safety spot-checks, or cameras
installed outside of the trucks rather than inside the cabins. In
fact, cameras constantly filming the drivers inside the trucks'
cabins had even proven to be distracting for the drivers, thus
potentially creating a greater risk from a safety perspective.
Employers who may be tempted to install such surveillance
systems on their fleet will need to remember that any such
violation of their employees' right to privacy will only be
justified by identifying an existing specific problem that cannot
be fixed by a less intrusive means than the surveillance system the
employer wishes to install.
The decision can be found here: Syndicat des travailleurs et
travailleuses de Sysco-Québec-CSN et Sysco Services
alimentaires du Québec, 2016 QCTA 455.
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