Northern Exposure

Do you suspect your employees are sleeping at work? Quebec arbitrator holds you have the right to film them

by Karine Fournier

In Quebec, in Unifor Québec et Moulage sous pression AMT inc., a grievance arbitrator confirmed that the employer had the right to temporarily film certain areas of the workplace when there had been several reports that employees were sleeping during the night shift.

Facts

The employer, a manufacturer of aluminium parts for the automobile industry, installed two video surveillance cameras, one in the compressor room and the other in the maintenance office, for approximately three weeks. The cameras were installed after employees reported that they had caught colleagues sleeping during the night shift.

As a result of the surveillance, four workers were suspended for five or 10 days because they had been caught sleeping during their night shift, that is, stealing time from the employer.

Following the suspensions, the union filed a grievance, alleging that the surveillance was improper and unreasonable and violated the Quebec Charter of Human Rights and Freedoms, which guarantees fair and reasonable conditions of employment. As such, the union claimed that the video evidence was inadmissible.

Arbitrator’s decision

In Quebec, the courts must dismiss any element of proof that is obtained under circumstances that infringe upon human rights and freedoms if the use of such proof is likely to bring the administration of justice into disrepute.

In this case, the arbitrator concluded that the evidence was admissible based on the following facts and principles: The videos were recorded over a limited period of time; only one manager viewed the recordings; the employer had the right to see its employees perform their work duties on a regular basis in consideration of their remuneration; and, lastly, the employer acted in response to reports and chose this rather than another method of surveillance after concluding that other potential means of control were not useful.

The arbitrator also noted that the employer had not acted based on a single incident where an employee was caught sleeping, but instead wanted to verify whether a pattern had been established, as reported.

The arbitrator found that the context described above provided the employer with reasonable and probable grounds to monitor the workers as it did. The arbitrator also noted that the employer had few alternatives to verify whether the workers were performing their work and the surveillance was only carried out in two specific places where employees could have been asleep and where few people were likely to enter.

Guidance for Quebec employers

This decision provides an example of where an arbitrator held that an employer in Quebec may use video surveillance of its employees to impose disciplinary measures if there are no reasonable alternatives to resolve a problem, the surveillance is limited in time and space, and a limited number of key individuals view the recordings.