Can an employer use video surveillance footage for disciplinary purposes, including to establish time theft, when the cameras were installed for another purpose? In a recent arbitration award,[1] the arbitrator admitted the footage into evidence and upheld the dismissal of an employee with no prior disciplinary record. This employer-favourable decision highlights the conditions that must be met before video surveillance is used as an investigative tool.
The facts
A grinding machine operator working the night shift at a foundry was dismissed for time theft. He had approximately four and a half years of seniority and no prior disciplinary record.
The investigation began when a co-worker reported that another operator was allegedly spending several hours at his workstation without working. With no foreperson assigned to the night shift, the employer investigated the report by reviewing footage from a camera overlooking the grinding workstations over five shifts. The camera had been installed several years earlier to deter vandalism. The union knew about it, and the employer had advised the union that it would not be used to monitor employees.
The footage showed that the employee, who was not the subject of the initial report, was away from his workstation or inactive for extended periods. The employer identified between three and six and a half hours of non-working time per twelve-hour shift, excluding the breaks and meal period provided for in the collective agreement.
During a meeting attended by his union representative, the employee did not deny his absences but maintained that he was as productive as, if not more productive than, his co-workers. The employer found his explanations insufficient and dismissed him, concluding that the bond of trust had been broken.
The union challenged both the dismissal and the use of the video recordings as evidence. It also alleged that the employer had failed to follow the disciplinary procedure and apply progressive discipline. At the hearing, the employee explained that he was going through a separation and making personal calls during his shifts, while increasing his work pace to make up for the time spent on those calls.
The decision
The arbitrator dismissed the grievance and upheld the grievor’s dismissal. The arbitrator first rejected the objection to the video evidence, finding that the assurances given to the union did not amount to an absolute prohibition on using the recordings. The employer had, in fact, reserved the right to use them in certain investigations. The question remained, however, whether their use in the circumstances respected employees’ rights.
The arbitrator found that the report warranted further inquiry and that reviewing the footage was the only realistic means of investigating it. The supervisors available at night worked in other areas, and their occasional visits would not have allowed them to verify the reported absences. A greater supervisory presence could also have altered employees’ behaviour.
The investigation was found to be reasonable and proportionate. The review covered only five shifts, and the fixed camera provided an overview of the workstations without following employees as they moved around. Access to the footage was restricted, and the retention period was short. The arbitrator also noted the limited expectation of privacy in this open industrial work area. The recordings were therefore admitted into evidence.
On the merits, the arbitrator found that the employee had been paid for extended periods during which he performed no work. His claim that he was as productive as his co-workers did not justify his conduct. Nor did the personal difficulties raised at the hearing constitute a mitigating factor: he was responsible for addressing those matters outside working hours or obtaining permission to be absent.
Finally, despite the employee’s seniority and clean disciplinary record, the extent and repeated nature of the misconduct justified dismissal without prior progressive discipline. The employee did not acknowledge any wrongdoing and instead sought to justify his conduct by pointing to his efficiency. The arbitrator found that this attitude showed no genuine willingness to change and confirmed that the bond of trust had been broken.
