The tapes are used to prove discipline was justified because the employee broke a workplace rule or regulation, engaged in behaviour that violated the collective agreement or committed a criminal act. When unions grieve for workers disciplined by the employer, management will often tender videotapes as evidence. In a unionized workplace, video surveillance has been used successfully to monitor employees’ performance and investigate workers suspected of criminal activity.
Unionized employees should look to their collective agreement to see if it prohibits management’s use of video surveillance to observe workers. If the court held the worker’s privacy rights had been infringed and excluded the videotape, the accused worker might be acquitted. The worker could then ask the judge to exclude from evidence the videotape that showed the employee, for example, committing theft or vandalism.
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A worker “caught on tape” committing a crime could argue at the criminal trial that there was a reasonable expectation of privacy in the circumstances (for example, in a workplace washroom) and that the right to privacy had been infringed so as to “bring the administration of justice into disrepute.”
In criminal matters, Canada’s Charter of Rights and Freedoms has been used to protect workers’ privacy in non-unionized settings. Simply put, an employer would likely not be allowed to target particular workers without cause, but may be able to target general areas in the non-unionized workplace with surveillance. In washrooms, change areas and locker rooms, however, it is reasonable for anyone (employee or customer) to expect privacy. Employees and the general public who use the front lobbies of businesses, customer service areas, waiting rooms or parcel pick-up areas would also have little expectation of privacy. If, for example, an employee is in plain view of the public, then the expectation of privacy is not reasonable. The key question is often whether there is a reasonable expectation of privacy. If, however, the camera is installed as an investigative aid for a specific time to monitor an area for suspected criminal activity, the surveillance is likely justified. Surveillance may infringe upon an employee’s right to privacy if cameras are installed only to monitor the general conduct, behaviour or efficiency of a specific employee or group of employees. For example, a worker pushing or threatening a manager. However, in civil court, employers have used surveillance tapes in wrongful dismissal cases to prove they had “just cause” to dismiss an employee. In the non-unionized workplace, employees enjoy a general right to privacy unless they give it up in their employment contract or otherwise waive the right expressly. Surveillance in the non-unionized workplace
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Does the employer have that right? Generally speaking, Canadian courts have not looked favourably on employers who install surveillance cameras to spy on employees without good reason. A licensed private investigatorĬan provide advice and assistance in using surveillance in a workplace and other investigation services. In many cases, employers are now using hidden and even openly disclosed surveillance cameras to routinely record job activities. Video surveillance is common in retail stores, financial institutions, manufacturing plants, casinos and wherever cash or inventory is found. Hidden cameras are also used to secretly record suspected criminal or improper activity. Often, surveillance cameras are installed to deter theft, vandalism, assault and sexual harassment. The use of surveillance cameras in the workplace in Canada is quite common.
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