In a recent decision,1 an arbitration tribunal found that video surveillance recordings and computer reports were admissible as evidence. The evidence in question demonstrated that an employee was committing time theft, justifying their dismissal.
Background
In November 2018, a unionized employee, who had held various positions since 2005 with the company operated by the employer (hereinafter the “Employer”), was a janitor working in a residence on the evening shift. To guarantee the safety of the premises and residents, a surveillance camera was installed, covering the residence's lobby and reception area. This camera automatically activated upon detecting movement and shut down after three (3) minutes of inactivity. Moreover, the reception area was equipped with a computer, located behind the counter, which screen was outside the camera's view.
On November 27, 2018, the employee was summoned by the Employer and confronted about certain concerns regarding his time management at work, which had been captured by the camera on a number of occasions. Essentially, the images showed the employee spending a significant amount of time at the reception computer. In response, the employee tried to downplay the facts and justify his actions by claiming that he had been performing “security-related duties” for the residence.
Faced with his attitude of denial, on November 29, 2018, the Employer decided to dismiss the employee for time theft.
Decision
In situations like this, the Employer's burden of proof is two-fold; namely, it must:
- prove the facts asserted in support of the disputed disciplinary measure; and
- convince the arbitration tribunal that the disciplinary measure is reasonable in the circumstances.
As a result, the video recordings and computer reports on the use of the receptionist's computer represented key evidence in the Employer's case. The union opposed the admission of this evidence
Admissibility of Videos and Computer Reports as Evidence
Despite the Union's opposition, the arbitrator ruled that the evidence was admissible based on the following reasoning:
First, the arbitration tribunal found that the videos and the computer reports did not infringe the employee's fundamental rights, particularly with respect to his privacy and fair and reasonable working conditions. The videos clearly showed the employee at the reception desk of the residence during his working hours. While the computer reports indicated the time spent surfing the Internet for personal purposes, it did not disclose any confidential information on the websites he visited or search tools he used.
Moreover, the arbitration tribunal underscored that the administration of justice would not be undermined by admitting the videos and computer reports as evidence but, rather, by refusing their admission.
The Union also contested the authenticity and integrity of the videos presented at the hearing, arguing that they were not captured directly by the camera, but came from a cell phone filming a computer screen on which the captured videos were projected. The arbitration tribunal, in accordance with applicable principles2, found that, as the standard proof of authenticity is necessary, technological document must be accompanied by metadata that allows the tribunal to verify that the information has not been altered and its authenticity has been maintained.
In the case at hand, the arbitrator found that the authenticity of the videos had been established by the testimony of the person who had filmed the computer screen. This testimony confirmed how the videos were made, and the arbitrator ruled that they were clear and unaltered. Consequently, the videos and computer reports were admissible as evidence.
Existence of Fault and Reasonableness of the Measure
Cross-referencing the video footage, which showed the long periods the employee spent at the reception desk computer, with the computer reports submitted for the same days, revealed that the employee spent many hours surfing the Internet from the reception desk computer when he should have been performing his work duties.
Lastly, in accordance with the principles established by the Supreme Court3 on dishonest conduct, the arbitrator considered the context of the misconduct and found that the employee, who enjoyed a high degree of autonomy, had breached the Employer's trust by working fewer hours than expected. Therefore, despite the fact that there was no progressive discipline, since the employee had not shown any regret or willingness to change his conduct, the arbitrator concluded that the disciplinary measure imposed by the College, although severe, was not unreasonable given the circumstances.
Takeaways
While this case highlights that, in certain circumstances, time theft may constitute a legitimate reason for dismissal due to a breach of the relationship of trust between the employer and the offending employee, it also serves as a reminder that an employer may, depending on the circumstances, be able to use video recordings and computer reports as evidence, underscoring the critical importance of maintaining and ensuring the integrity and authenticity of technological evidence, such as videos.
In this case, the arbitrator ruled that the authenticity of the videos, established by the testimony of the person who had made the videos, was sufficiently compelling. The videos were clear, enabled the employee to be identified, and had not been significantly altered, justifying their admission into evidence.
That said, it is important to remember that a certain trend in the case law of the Arbitration Tribunal tends to allow union objections to the admissibility of video evidence when the employer cannot produce convincing evidence to corroborate the integrity of the evidence.
As a result, although video evidence can be extremely relevant and probative, particularly in demonstrating an employee's alleged misconduct, it is imperative for employers to ensure that they maintain and guarantee the integrity and authenticity of such technological evidence. This is essential not only to maximize the chances of the admissibility of such evidence but also to ensure that it has sufficient probative value.
Footnotes
1. Syndicat des employés de soutien du Cégep de la Gaspésie et des Îles à Gaspé (FEESP-CSN) et Cégep de la Gaspésie et des Îles, 2025 QCTA 16.
2. Benisty c Kloda, 2018 QCCA 608.
3. McKinley v BC Tel, 2001 SCC 38.
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