This ruling addresses the issue of admissibility and disclosure of employer evidence in support of dismissal of the complainant.

The complainant in the case had been dismissed for violating applicable rules and procedures at a time when she was working as a maintenance employee at a ski station.

The events triggering dismissal were detected by management as a result of having installed surveillance cameras in the cabins where the complainant carried out her work duties.

More specifically, management criticized the complainant for having used her cell phone to make calls, send text messages and play games and to have used the telephone at her work station for personal purposes, in addition to sleeping in the workplace and smoking inside the operations centre.

Preliminary disclosure of evidence

Does the employer have the duty to disclose video evidence to the complainant in its possession prior to the complainant testifying at an arbitration hearing? 

The arbitrator ruled that neither the law nor the collective agreement imposes any such duty on the employer. The arbitrator placed emphasis upon the distinct nature of an arbitration proceeding, that hinges upon an informal approach and avoiding undue procedural delays.

He next ruled that an assessment of the credibility of testimony was an essential issue in reaching a determination as to whether the sanction imposed was appropriate. To allow a prior consultation of the video evidence would have defeated the process.

Under these circumstances, the arbitrator refused to apply the rules of civil procedure relied upon by the union in its argument and accepted the employer’s proposal to allow disclosure of the video recording solely after examination of the complainant.

Admissibility of video evidence

The union argued that the video recording obtained by the employer violated a fundamental right of the complainant. In the union’s submission, there was a serious breach of the complainant’s right to privacy. The union also argued that the surveillance amounted to an unreasonable employment condition, thus violating both the Quebec Civil Code and the Charter of Human Rights and Freedoms

Video surveillance is not per se illicit. It can be justified upon reasonable grounds, if in service of a legitimate purpose, and subject to it being proportional to this purpose, while ensuring that it is executed by reasonable means and that any infringement of fundamental rights remains minimal.

In this case, the arbitrator ruled the evidence admissible. Since the complainant was directly responsible for the safety of other employees within the framework of the performance of her duties, the arbitrator concluded that the purpose sought by surveillance was the health and safety of employees. This is a legitimate purpose.

Furthermore, the layout of the premises prevented any impromptu arrival in the workplace by the supervisors. From a practical standpoint, this made it impossible to catch the complainant in the act of any wrongdoing. Given that management had no other reasonable means to carry out adequate surveillance, the use of the surveillance camera was necessary.

The camera was used for a brief period. It filmed a precise location in a closed circuit. The surveillance was thus carried out in a reasonable manner under the circumstances.

Considering the foregoing, the arbitrator ruled the video evidence admissible, since it was not obtained under conditions that would violate the fundamental rights of the complainant.

Reference : Syndicat des travailleurs(euses) de la Station Mont-Tremblant (CSN) et Station Mont-Tremblant (Claudine Amadei), (T.A., 2018-02-01), 2018 QCTA 54,

Advice to employers

Management’s right to monitor employees with hidden cameras is not unfettered. In the present case, the evidence was deemed admissible because no other reasonable means of surveillance was available to management, and also because in the performance of her duties the complainant was directly responsible for the safety of other employees. The use of such a method of surveillance is a method to be deployed with due care.