When confronted with information that an employee may be abusing paid sick leave, it is only natural for an employer to want to investigate further. One way in which employers may do this is through the surreptitious surveillance of the employee. However, such surveillance is of limited value unless the employer will be able to rely on the surveillance in a subsequent legal proceeding.
Employers who act precipitously and engage in employee surveillance without first complying with the relevant legal requirements may find themselves unable to later rely on the surveillance evidence they have gathered. This was precisely what happened in a recent labor arbitration case in British Columbia.
In Unifor, Local 433 v. Crown Packaging Ltd. (Giesbrecht Grievance), [2014] B.C.C.A.A.A. No. 43 (Dorsey), a labor arbitrator presiding over a dismissal grievance refused an employer’s request to introduce evidence gathered by way of surveillance because the employer had not complied with the requirements of applicable privacy legislation.
Facts
The employee in this case, Warren Giesbrecht, was a long-serving employee of Crown Packaging Ltd. with a clean record. He requested vacation for October 7-11, 2013. He was approved for October 7-8 but not for the three other days as there were too many employees already scheduled to be off.
On Friday, October 4, Giesbrecht reported a back problem to first aid. He then took vacation on October 7-8 as approved. During his time off, he called in to once again request vacation for October 9-11. His request was denied. On October 9, he called his supervisor to advise that he would not be reporting to work for the afternoon shift as scheduled because of a back problem. He indicated that he had a doctor’s note, which he then read to his supervisor.
By this time, Crown Packaging was suspicious about the legitimacy of Giesbrecht’s back problem, as it had received information suggesting that he was planning a road trip. Crown Packaging subsequently hired a private investigator to engage in surreptitious video surveillance of him.
Based on the surveillance footage that showed him engaging in certain activities in his back yard and away from his home, Crown Packaging dismissed Giesbrecht for fraudulently claiming sick leave and obtaining short-term disability benefits.
At the hearing, the union objected to the admissibility of the video surveillance. Relying on British Columbia’s privacy legislation and prior arbitral jurisprudence, Arbitrator James E. Dorsey considered whether Crown Packaging had a “reasonable basis” for engaging in the surveillance.
After examining the evidence, the arbitrator concluded that all Crown Packaging had before it undertook the surveillance was “a suspicion based on repeated requests for vacation leave, a report of a possible plan to take a trip, perhaps a reference by Mr. Giesbrecht to a back problem in his telephone call on Oct. 8, and a sick leave report on the first day for which leave was authorized.” All of this had to be weighed against his long tenure, clean record, and the fact that he had taken only eight days of sick leave in the past three years.
In addition, the arbitrator noted that the “reasonable basis” requirement necessitates that an employer first consider alternative, less intrusive means to investigate its suspicions. In this case, Crown Packaging made no effort to obtain further information about Giesbrecht’s sick leave claim from him or anyone else before it commenced surveillance.
As a result, the arbitrator concluded that Crown Packaging did not have a sufficient basis for commencing the surreptitious video surveillance when it did and that the company should have first employed less intrusive means to test the legitimacy of Giesbrecht’s request.
Lessons for employers
For employers operating in Canadian jurisdictions with private-sector privacy legislation, this decision is a reminder of the importance of ensuring that there is a “reasonable basis” for engaging in any kind of employee surveillance.
In many cases, employers must first consider less intrusive means to test their suspicions. For example, where an employer suspects that an employee may be abusing paid sick leave, the employer could first confront the employee directly about its suspicions or require the employee to provide appropriate medical information.
In other cases, an employer may have a “reasonable basis” for moving directly to surreptitious surveillance without first engaging in less intrusive measures—such as where an employee has abused paid sick leave in the past or has a history of dishonesty toward the employer. In all cases, however, employers must ensure that they fully consider all of the relevant facts and surrounding circumstances before deciding on how best to proceed.
