GSB#0562/01
UNION#01C403
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Guelph)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFORE Daniel A. Harris Vice-Chair
FOR THE UNION Peggy Smith
Eliot, Smith
Barristers and Solicitors
FOR THE EMPLOYER Carol Ann Witt
Counsel
Management Board Secretariat
HEARING October 28, 2002.
DECISION
The Proceedings
In this matter the Union has grieved that Paulette Guelph was unjustly discharged from her employment as a hotline operator with the Ministry of Transportation. The allegations against Ms. Guelph are that she had a conflict of interest which came about as a result of her having owned a retail store while employed by the MTO. In the course of the investigation, the Employer directed a private investigative firm to videotape Ms. Guelph while she worked at the retail store during a period that she was in receipt of sick benefits that had excused her attendance at work. The Union has objected to the introduction of the videotape evidence. This decision deals with the admissibility of that evidence.
The Facts
The Union takes issue with the reasonableness of the decision made by the Employer to investigate Ms. Guelph. The evidence to date discloses that Tim Ferguson, the Program Manager with responsibility for the telephone hotline operators, met with Allen Tait, an Investigations Manager with the Ministry of Transportation. At that time Mr. Ferguson reviewed with Mr. Tait his concerns regarding a possible conflict of interest arising as a result of Ms. Guelph’s owning a retail store in Kingston, Ontario. They discussed four aspects of Ms. Guelph’s behaviour that caused Mr. Ferguson concern. Those four areas of concern included the grievor’s use of Ministry computers for the preparation of business related documents, the grievor’s inappropriate use of the telephone, for business purposes, the grievor’s inappropriate use of a Ministry of Transportation credit card for financing purchases related to the retail business and the possibility that the grievor, who was on sick leave at the time of the meeting, might in fact be engaged in activities relating to the retail business.
That day, Mr. Tait made a preliminary investigation of the grievor’s computer, and believed he found prima facie evidence of the inappropriate use of the computer for the generation of business documents. Based on his discussions with Mr. Ferguson, Mr. Tait concluded that there was reason to be concerned regarding the grievor’s use of the Employer’s telephone and Amex credit card. He asked Mr. Ferguson to obtain the documents necessary to assess those two areas. Based on the three areas of concern, Mr. Tait and Mr. Ferguson concluded that it would be appropriate to engage the services of an independent surveillance company in order to determine whether or not Ms. Guelph was then engaged in the operation of her retail business, while she was off work from the Ministry of Transportation and in receipt of sickness benefits. That decision was confirmed in a telephone discussion between Mr. Tait and his Director, Charles Brown. Mr. Tait testified that although the misuse of sick leave credits was only conjecture at that point, it was not unreasonable to investigate that concern given the other areas that had been identified. The best evidence of the misuse of sick leave credits would be videotape surveillance that showed if the grievor was working at the store while on sick leave.
Mr. Tait was asked if there would have been less intrusive options open to the investigation of the use of sick leave credits. He testified that telephone calls could have been placed to the grievor. However, given the current technology, it would not be conclusive proof that the grievor was physically in one location or another when she took the call. He also testified that it would have been possible for management to meet with the grievor and ask her whether or not she had engaged in the operation of the retail store while on sick leave. He testified that the making of such an unproven allegation to an employee would be unfair. That is, to confront an employee with such conjecture, which could turn out to be inaccurate, would be unfair and offensive to the employee. However, if there was a foundation for the accusation, an employee ought to be confronted with a comprehensive allegation, the best evidence of which would be videotape evidence.
The Submissions of the Parties
The Union submitted that it was unreasonable to initiate videotape surveillance on March 12, 2001. The Union said that videotape surveillance is intrusive, and other less intrusive means of investigating the allegations of the alleged misuse of sick leave credits were open to the Employer. The Union said that it is always necessary to balance the right of privacy of an employee against the Employer’s right to investigate potential breaches of the collective agreement. In particular, the Union submitted that it was unreasonable to engage in videotape surveillance in these circumstances without first fully apprising themselves of the nature of the illness for which Ms. Guelph was taking sick leave. The Union said that in these circumstances Ms. Guelph was off work with the MTO on a stress related leave. Accordingly, any activity of the grievor working in a retail store may be completely consistent with a stress related leave from the MTO’s telephone hotline operator position. The Union also submitted that if the Employer was concerned about the potential misuse of sick leave, it had the option open to it under the collective agreement of requesting a second medical opinion.
The Union argued in the alternative that the decision to embark on video surveillance was premature. There was no evidence that the Employer could not have contacted the grievor or that she would not have admitted freely that she was working in the store given the reasons for which she was on sick leave. The Union relied on the following two cases: Toronto Star Newspapers Ltd. And Southern Ontario Newspaper Guild, Local 87, (1992), 1992 CanLII 14440 (ON LA), 30 L.A.C. (4th) 306 (Springate) and Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1999), 1999 CanLII 35815 (ON LA), 95 L.A.C. (4th) 402 (Chapman).
The Employer argued that the Board should take a liberal view of admissibility in view of the provisions of section 48(12)(f) of the Ontario Labour Relations Act, 1995. The Employer submitted that there is no general right to privacy such as would interfere with the Employer's decision to engage in videotape surveillance of the grievor while she worked in a retail outlet in downtown Kingston. The Employer also submitted that even if it were necessary to balance the privacy interest of the employee against the Employer’s interest in properly investigating such allegations, the Employer’s decision would have to be taken as reasonable. Mr. Tait was said to have enough prima facie evidence of a conflict of interest as it related to the use of the American Express Card, the use of the telephone and the use of the computer, to justify a concern that there may well have been a misuse of sick leave credits. The decision to engage in videotape surveillance was said to be reasonable because that would be the best evidence of the grievor’s activity.
The Employer relied upon the following authorities: Canadian Timken Ltd. & USWA, Local 4906 (2001), 2001 CanLII 62100 (ON LA), 98 L.A.C. (4th) 129 (Welling); Kimberly-Clarke Inc. & IWA-Canada, Local 1-90-4, (1996), 1996 CanLII 17917 (ON LA), 66 L.A.C. (4th) 266 (Bendel); Toronto Transit Commission & ATU, Local 113 (1999), 1999 CanLII 35949 (ON LA), 79 L.A.C. (4th) 85 (Solomatenko); Canadian Pacific Ltd. & BMWE (1996), 1996 CanLII 20387 (CA LA), 59 L.A.C. (4th) 111 (Picher); Brewers Retail Inc. & United Brewers’ Warehousing Workers’ Provincial Board (1999), 1999 CanLII 35913 (ON LA), 78 L.A.C. (4th) 394 (Herman); Toronto Transit Commission & ATU, Local 113 (1999), 1999 CanLII 35849 (ON LA), 88 L.A.C. (4th) 109 (Shime).
Reasons for Decision
This issue appears to be one of first impression before this Board. Accordingly, it is essential to adhere to the general adjudicative dictate to decide the matter on the narrowest possible basis. Regrettably, previous decisions have not taken this approach. Rather, many of the cases have engaged in a rights discourse that can only be taken as being far more abstract than was contemplated in bargaining sessions between the parties. In Kimberly-Clark, supra at page 285, Arbitrator Bendel reviewed the expectations of a Board of Arbitration in dealing with evidentiary issues raised by section 48 (12)(f):
The fundamental question that has to be asked is whether an arbitrator, in the exercise of the discretion conferred by section 48 (12)(f) of the Labour Relations Act, 1995, is entitled to rely on such considerations. In other words, was it intended by the Legislature in enacting this provision, that arbitrators might exclude evidence that is relevant and court admissible, thereby denying a party the opportunity of presenting it’s best case, in the interests of safe guarding the credibility of the arbitration process?
The courts have been called upon on several occasions to explain what they see as the purpose of provisions such as section 48(12)(f). In Re Toronto (City) & C.U.P.E., Local 79 (1982), 1982 CanLII 2229 (ON CA), 133 D.L.R. (3d) 94, the Ontario Court of Appeal at pages 106-9, had this to say on such a provision:
It is plain that the Board was not bound by the rules of evidence and the argument addressed to us by the union and by the arbitration board decisions cited by it fly in the face of the statute. A decision by any board to refuse to admit evidence because it was not admissible in the courts… would constitute an obvious error of law. In addition, the discretion of a board obviously would be improperly exercised if it acted in the belief that these legal rules… were binding upon it. It is beyond question that any board so acting would fetter its discretion.
The purpose of arbitration of grievances under collective agreements is to provide an expeditious and fair method of settling disputes which experience has demonstrated are much better solved in this fashion than by complex judicial proceedings. Most arbitrators are laymen who bring the benefit of their experience to the practical solution of complex human problems. Courts consistently have recognized the special role of arbitration boards and have been loath to interfere with their decisions or proceedings.
It is therefore surprising to observe the extent to which arbitration awards purport to deal with complex questions of law. Many arbitration board decisions cited to us contain scholarly dissertations on important substantive and procedural rules applicable to judicial proceedings. They exemplify the extreme legal formalism and adherence to technical rules which overhangs the arbitration process. At best, these elaborate legal studies may be irrelevant because boards are not bound in their procedure by technical rules of law and procedure. At worst, they can cause delay and unnecessary expense and, as the argument in this appeal demonstrated, they can obscure the real issues confronting an arbitration board and confuse it in the performance of its duty.
In my view the jurisprudence relied upon exemplifies the scholar discussions referred to by the Court of Appeal. Those abstract discussions of the admissibility of surveillance evidence have obscured the labour-relations issues. For example, Canadian Timken, supra, is a powerful polemic grounded in a positivist analysis that decries the lack of black-letter law support for a “right” of privacy, TTC v. ATU, Local 113 (Belsito), supra, is an equally powerful analysis, on the human rights side of the rights discourse, put forward for the recognition and protection of a fundamental human right of privacy. But I digress, and risk being drawn into the “talmudic” vortex adverted to by Arbitrator Shime (see TTC v. ATU, Local 113(Russell) at page 109). Whether or not rights fall from the sky does not illuminate the expectations of the parties to a collective agreement as to how the agreement will be administered. For those reasons, I am drawn to the labour-relations centered approach of Canadian Pacific v. B.M.W.E., supra, and Centenary Health Center v. C.U.O.E. (Ahluwalia) (1999), 1999 CanLII 19037 (ON LA), 77 L.A.C. (4th) 436 (Albertyn). Although Arbitrator Shime’s decision in TTC v. ATU (Russell), supra, is attractive in its simplicity, it cannot be that an employee's expectations of privacy, as a function of the place where surveillance occurs, are determinative. If that is the ratio of the Shime award, it goes too far. That is, in a labour-relations context, the mere fact that an employee is in a public place is not sufficient to permit an employer to rely upon surveillance of the employee for workplace discipline purposes without some reason for the employer to have engaged in surveillance in the first place.
The first principle from which the analyses in these surveillance cases ought to proceed is that there is an employment relationship between the watcher and the watched. If there is no reasonable limit on the Employer’s contractual right to supervise the activities of its employees outside of the workplace, it calls to mind the analysis of Arbitrator Ellis in Purtex Knitting Co. & Canadian Textile and Chemical Union, (1979), 1979 CanLII 4023 (ON LA), 23 L.A.C. (2d) 14 at pages 29-30:
In the use of electronic surveillance, it is apparent that we confront conflicting social values of considerable significance. There is on the one hand the principle of the right to privacy and beyond that the more general idea, of which the right to privacy is only one facet, of the crucial importance of preserving and nurturing the historically fragile concept of human dignity. The Orwelian construct of the ultimately socialized man and, as suggested in the EICO case, the programmed factory of Chaplin’s “Modern Times” are widely accepted in this society as classic illustrations of a world gone wrong -- of anti-human societal tendencies. Electronic surveillance is the ultimate socializing device and the public controversy which always attends its use attests to people’s instinctive identification of its fundamentally anti-human character. On the other side of the issue are simply considerations of efficiency in dealing with social problems.
The issues are not different in the industrial context.
It is clearly a matter of balancing competing considerations after recognizing that any use of cameras that observe employees at work is intrinsically seriously objectionable in human terms with the degree of objection depending on the way the cameras are deployed and the purpose for which they are used…
That case involved an interest award and related to cameras installed inside the workplace. For an employer to surreptitiously film or videotape employees outside of the workplace is by definition an intrusion into their private, non-employment spheres of activity. An employment relationship is of an on-going nature that must be based on mutual trust. The cases are legion of discharge being appropriate when that bond of trust is broken. Arbitrator Albertyn described the situation in Centeniary Health Center, supra, at pages 442 to 443 as follows:
Although there is no statutory right of privacy in Ontario, plainly employees have some entitlement to expect a private life which is not under the custodianship of the employer, although the employee’s reasonable expectation of privacy will vary depending upon the context and circumstances in which the employee seeks to assert that right. In other words, the right to privacy is not absolute, and must be considered in the context of the contractual obligations of the parties to the employment relationship.
We also accept the rationale for the reasonableness approach, as contained in Canadian Pacific Ltd., at 124 f-g that boards of arbitration have an obligation “to safeguard the integrity of their arbitration procedures, and the credibility of the arbitration process generally”.
All of these considerations conduce towards the acceptance of the reasonableness approach. However, in our view, they do not plum the essence of why arbitrators should weigh reasonableness in the balance against the heavy consideration of the employer’s right to present all relevant evidence, however obtained. What is fundamental to the employment relationship is mutual trust and respect between an employer and it’s employees. Employers should therefore not engage in conduct which assumes, or is founded upon, suspicion and mistrust of their employees. Good faith and mutual trust are intrinsic features of the employment relationship. A manifestation of these foundations of the employment relationship is that both parties are assumed to be acting in good faith towards each other unless there is some reasonable basis for concluding otherwise. The mutual trust and respect between employees and their employer, and bona fide conduct between them, are fundamental to the success and efficacy of employment and collective bargaining relationships. Ongoing trust is essential not only to the relationship between employers and their employees, but also to the collective bargaining relationship between employers and trade unions. Surreptitious conduct on the part of one collective entity towards another, or in the administration of their collective agreement, has the effect of undermining the mutual trust and respect which are vital to an ongoing, successful collective bargaining relationship. Boards of arbitration should therefore not condone conduct which serves to undermine that trust and the good faith foundation of efficacious labour and employment relationships, unless there is good reason to do so.
The pre-condition for an employer to rely upon the fruits of its surveillance efforts is that there was a reasonable basis to justify its decision to watch the employee outside of the workplace. It must have a legitimate work-related reason for engaging in such surveillance. In Canadian Pacific Ltd., supra, Arbitrator Picher reflected on the employer’s interest in cases such as this as follows at pages 123-124:
… Part of the bargain in many contemporary employment relationships involves the payment by the employer or its insurance carrier of sickness benefits or other forms of insurance or indemnities, short term or long term, when an employee is incapacitated by illness or injury. An employer obviously has a legitimate interest in preventing abuse of that system of employee protection by those who would advance fraudulent claims.
That interest must be fairly balance with what is becoming recognized as the employee’s interest in a respect for his or her personal privacy the employer’s interest does not extend to justifying speculate spying on an employee whom the employer has no reason to suspect will be dishonest. As a general rule, it does not justify a resort to random videotape surveillance in the form of an electronic web, cast like a net, to see what it might catch. Surveillance is an extraordinary step which can only be resorted to where there is, beforehand, reasonable and probable cause to justify it. What constitutes such cause is a matter to be determined on the facts of each case. As well, the method and extent of such surveillance must be appropriate to the employer’s purpose, and not excessive or unduly intrusive. A legitimate interest in an employee’s physical condition might not, for example, justify the covert examination of his or her bank records or other personal information.
In my view, in a case such as this, in considering the admissibility of videotape evidence acquired in the course of surreptitious surveillance, the appropriate test involves a two-part analysis.
Was it reasonable, in all of the circumstances, to undertake surveillance of the employee’s off-duty activity?
Was the surveillance conducted in a reasonable way, which is not unduly intrusive and which corresponds fairly with acquiring information pertinent to the employer’s legitimate interests?
This approach, diligently applied, should protect reasonably against the possible abuse of the right of an employer to resort to surveillance of its employees, in a manner consistent with the obligation which boards of arbitration have to safeguard the integrity of their own procedures, and the credibility of the arbitration process generally.
The analyses of Arbitrators Picher and Albertyn are informed by labour-relations considerations that may result in the exclusion of relevant evidence pursuant to s. 48(12)(f). Arbitrator Springate in Toronto Star Newspapers Ltd., (supra), put the matter as follows at page 312:
… an employer generally does not have the right to intrude on an employee's privacy by videotaping his or her conduct. An employee's right to privacy, however, is not absolute and in certain circumstances the employer's interests may outweigh an employee's right to privacy. In order for an employer to establish that this is the case, it must demonstrate that it was reasonable for it to resort to surveillance and also that the surveillance was conducted in a reasonable manner. . . .
I now turn to the facts of this case to determine whether it was reasonable, in all of the circumstances, for the Employer to undertake videotape surveillance of Paulette Guelph’s off duty activity at her retail store. Put differently, did the Employer have reason to suspect the grievor of being dishonest?
As set out above, the decision to engage a firm to watch Ms. Guelph was made by Mr. Tait and Mr. Ferguson and confirmed in discussions between Mr. Tait and his superior Mr. Brown. There was a reasonable basis for that decision. The Employer had reason to believe that Ms. Guelph had used MTO resources to further the success of her retail store. Those resources were its computer and telephone equipment and its corporate Amex credit card. Given those concerns about potential conflicts of interest, it had reason to question whether she was really sick or working in her store. Accordingly, the Employer had some reasonable cause to take action to investigate.
The Union spent some effort in establishing that there were other options open to the Employer other that videotape surveillance. In the circumstances of this case, videotape surveillance was not an unreasonable choice. The suspicion was that the grievor was working at the store while on sick leave. The most straightforward approach was to go and look. The best evidence of what was to be seen would be to record the events. Although there may well have been other options open to the Employer, there is no obligation to exhaust all other options before resorting to videotape surveillance when the choice of surveillance was itself reasonable.
In all of the circumstances, I find that it was reasonable for the Employer to undertake videotape surveillance of the grievor’s off-duty activity. Although these reasons have addressed the videotape surveillance evidence, seemingly, there is other evidence in the form of written reports that also arose from the surveillance. There can be no sustainable distinction drawn between the various pieces of evidence produced by virtue of the surveillance.
Finally, the Union submitted that the Employer ought to have considered that the stress that excused the grievor from her hotline operator's job was not present at the store, so surveillance could not be justified. That is, although unable to work for the MTO due to stress related illness, she may have been able to work at the store. That may or may not turn out to be true. However, that is no bar to going to look to see if she is working in her store. Such considerations go to the weight to be attached to the surveillance evidence, not its admissibility.
I have not yet seen the videotape. However, the Union has indicated that it does not take issue with the methodology employed in the creation of the tape. Accordingly, there is no need to go to the second step in assessing the admissibility of the surveillance evidence.
The Decision
The Union’s objection to the admissibility of the surreptitious surveillance evidence is denied.
Dated at Toronto this 14th day of November, 2002