Covertly taping staff off-duty a tool of last resort
Background
Videotaping an employee is a powerful tool in exposing malingering. After all, videotapes don’t lie and they don’t conveniently forget facts as some witnesses are apt to do.
But courts and arbitrators have struggled with when employers can pull that tool out of its arsenal and hire a private investigator to follow the worker.
A recent case out of Windsor, Ont., appears to have struck another blow against the use of video surveillance on an employee. At the very least, it underscores the fact that video surveillance is a tool of last resort in most cases, to be used only after an employer has exhausted almost every other avenue.
The case
Dion Roberts started working for Pre-Stressed Systems Inc. in 1998 as a general labourer. He was fired on Jan. 20, 2003. His employer claimed he had deliberately misrepresented the severity of a back injury he suffered at work in the fall of 2002.
Pre-Stressed decided to terminate Roberts after it commissioned and reviewed several video surveillance tapes. The tapes, shot covertly by a private investigator, showed Roberts during various off-work activities in public areas in the latter half of December 2002.
Michael Lynk, the arbitrator who heard the case, ruled on whether or not the employer could introduce the tapes as evidence. Roberts’ union, the Labourers’ International Union of North America, objected to the videotapes.
Pre-Stressed manufactures structural products for the construction of industrial and commercial buildings. As a general labourer, Roberts would normally rotate through a number of jobs at the plant, all of which required some physical exertion. The rotation was designed to broaden the skill of workers and reduce the chance of a repetitive strain injury.
In early July 2002, Roberts injured his left elbow at work. He continued to perform his regular duties for several weeks, but eventually went to see a chiropractor for assessment and treatment.
The employer asked Roberts to have the chiropractor fill out a functional assessment form (FAF), which is produced by Ontario’s Workplace Safety and Insurance Board. The initial FAF listed the limitations to his elbow and estimated the limitations would last two weeks. Roberts was given light duties.
But the recovery took much longer than initially anticipated. Roberts made at least five visits to his chiropractor between August and the beginning of November. The first four FAFs stated the same approximate limitations with an anticipated recovery time of two weeks in each case.
The final FAF on his left elbow, dated Nov. 15, 2002, determined that Roberts was capable of using his elbow without limitations. Roberts worked this entire time on light duties and did not miss any time outside of visits to the chiropractor.
While recovering from his elbow injury, Roberts suffered an injury to his back at work. The initial back injury happened on Sept. 24, but it was re-injured on Oct. 18. (He hurt it again after falling on a patch of ice in early December.) On Nov. 1, Roberts went to his chiropractor to address the back injury. The doctor completed a FAF with regard to his back. Among other things, it said he could do no lifting and no ladder climbing, though he could stand for up to 15 minutes.
It was estimated by the doctor the restrictions would be in place for two weeks. Following this FAF, Roberts was given light duties. This assignment lasted until the doctor cleared him for a complete return to regular work on Jan. 15, 2003.
But by early December the employer was beginning to have doubts about the extent of the injury. Roberts’ supervisor said the injury appeared to be taking a long time to heal, especially considering each FAF gave an estimated recovery time of only two weeks.
According to the supervisor, none of the injuries — the elbow or the three back injuries — were witnessed by any other employee.
On Dec. 9 an employee told the supervisor that Roberts had been speaking to several of his co-workers that morning about having played hockey the night before. That employee said Roberts was now playing hockey several times a week.
With this information the supervisor went to see the company’s health and safety co-ordinator to see if something could be done to verify Roberts’ true physical condition. The idea of videotaping Roberts was floated during this meeting.
Pre-Stress used a Windsor health and safety company, Safety Comp, to act as outside consultants. Safety Comp advised the company about health and safety, workers’ compensation and the management of its work hardening programs for injured employees.
The health and safety co-ordinator sought permission from her supervisor to authorize video surveillance of Robert’s off-duty activities. She also sought advice from Safety Comp.
She directed Safety Comp to hire a private investigation service to conduct the surveillance. At the hearing, she said she sought the surveillance because the back injury was taking such a long time to heal and that playing hockey suggested Roberts might be misrepresenting the severity of his back injury.
Between Dec. 16 and Dec. 27, 2002, Roberts was placed under video surveillance. The tapes showed Roberts walking in a residential neighbourhood, bending over to pick up an object lying on the grass, lifting a barbecue off the back of a truck at a house and playing two games of no-contact ice hockey at an indoor rink.
He was dismissed on Jan. 20, 2003, on the grounds that he had misrepresented his capabilities.
The union’s argument
The union said the employer had a duty to take other less invasive and more intermediary steps to secure the information about the worker’s true medical condition before infringing on his privacy.
The employer never asked the chiropractor why the injury was taking so long to heal, it didn’t ask him to go see a medical doctor and did not direct him to rehabilitation, the union said.
It said the arbitrator should adopt the “reasonableness” test — in this case the employer did not have sufficiently reasonable grounds to order the monitoring of Roberts, nor did it adequately explore other alternatives before commissioning the surveillance.
The employer’s argument
Pre-Stressed argued that the core of Roberts’ misconduct — the misrepresentation of the state of his recovery from an industrial injury in order to benefit by having light-duty assignments — is a serious industrial relations offence.
It said the consequences of such behaviour are:
•diminished productivity;
•higher workers’ compensation costs;
•erosion of the morale of other employees;
•removing light-duty assignments from other employees with disabilities; and
•breaching the fundamental element of employment trust.
It argued other cases suggest it is doubtful that employees have a right to privacy in Ontario. Even if they do, they do not enjoy an unlimited right, particularly in a public space, it said.
Even if the arbitrator adopted the reasonableness test argued by the union, it said it encountered all kinds of red flags regarding the employee’s recovery. It said there were no other reasonable alternatives open to it because it was a soft-tissue injury, something which is usually fruitless to refer to a physician because the medical diagnosis is largely dependent on what the employee says.
The decision
Arbitrator Lynk said there has been a great deal of cases dealing with video surveillance over the past 15 years, but Canadian labour arbitrators have yet to reach a settled position, let alone unanimity, on the proper principles to apply when assessing the admissibility of video surveillance covertly taken of an employee in a public place.
He said most reasonable employers would have wondered why Roberts was not healing faster and would have asked themselves whether or not his limitations were accurately represented or were being properly diagnosed and treated by his chiropractor.
“A reasonable employer would have had enough information to raise its suspicions,” said Arbitrator Lynk.
“A desire to investigate further to determine as to whether some employee chicanery was present or, alternatively, whether a misguided recovery process was being applied, would have been justified.”
But having a basis for suspicion that would justify further investigation is not necessarily the same thing as establishing reasonable grounds to conduct covert surveillance that would intrude upon an employee’s privacy outside of work.
The arbitrator said there was no evidence to indicate Roberts had any unsatisfactory employment history before the employer developed suspicions about the back injury. There was no abuse of sick leave, no doubtful requests to obtain light work assignments, no pattern of working unproductively or acting dishonestly or deceitfully.
The employer never considered any of the other options available to it, such as seeking a direct explanation from the chiropractor about the off-duty limitations for Roberts or asking him to go for an independent medical exam to assess the extent of the injury and the limitations, said Arbitrator Lynk.
Roberts was also co-operative with his employer the entire time he was injured, and provided updates from his chiropractor on a regular and timely basis, he said.
Arbitrator Lynk also said the evidence in this case was less compelling than in other cases where arbitrators had allowed surveillance.
Therefore, he ruled, the employer had not established that it was reasonable to undertake the surveillance.
“I do not take lightly the fact that Mr. Roberts was playing hockey while he was still recovering from his back injury,” said Arbitrator Lynk. “Intuitively, any reasonable employer would have had some concerns, or at least questions, in the circumstances.”
But he said the limitations Roberts was under while playing hockey were moderate enough that other reasonable explanations were possible.
The employer should have considered other less intrusive steps to seek answers to its questions before deciding to start surveillance.
A test for using surveillance?
Arbitrator Michael Lynk said an employer must establish a reasonable basis, based on all the circumstances, for the admission of video surveillance into evidence.
He said the following factors will be considered as part of the test:
1. A “reasonableness” test will examine: (i) whether the employer had a reasonable basis to engage in the covert surveillance; and (ii) whether the surveillance was conducted in a reasonable manner.
2. Part of the inquiry will consider whether the employer had other reasonable alternatives to employ before engaging in covert surveillance. The employer will not have to demonstrate that all other possibilities were exhausted before turning to the surveillance, but, as a factor in considering the reasonableness of the surveillance, it would have to explain why some readily available and less intrusive methods could not have accomplished the same goal.
3. Reasonableness will be measured on an objective standard.
4. What is reasonable will depend on the context. This would normally include considering such factors as: the basis of the employer’s suspicion of the employee; the nature of the potential harm to the employer’s enterprise; the degree of impairment to the trust factor; the alternatives available to obtain the required information; and the degree of intrusion caused by the particular surveillance method.
What would have justified surveillance?
Had the FAF stated that Roberts’ injury was more incapacitating, such that the participation in an activity like hockey would have been completely inappropriate, then the probability of fraud or deceit would have “almost certainly” justified surveillance, said Arbitrator Michael Lynk.
He also said he would not expect that, in every case, an employer would have to establish a troublesome prior employment record as a necessary pre-condition to satisfying the reasonableness test to conduct covert surveillance.
“One can envisage a range of persuasive situations, such as an employee with a clear prior record who has been reasonably linked to an apparent pattern of fraud or theft — that would justify the employer’s operational interests trumping the employee’s general entitlement to privacy,” said Arbitrator Lynk.
Cases where surveillance was allowed
In making his ruling, Arbitrator Michael Lynk considered a number of other cases.
In Re Canadian Pacific Ltd., the arbitrator found the employer had established a reasonable basis for the off-duty surveillance because the worker, who was claiming an injury, had previously falsified information respecting a a workers’ compensation claim, a separate medical report concluded he had been faking an injury, he had been observed walking in a manner inconsistent with his claimed injury and he had an unusual pattern of on-the-job injuries which far exceeded the employee average.
In Re Toronto Transit Commission (Belsito), the arbitrator found justification for the employer’s surveillance in the fact that the worker, while on sick leave, was not able to be contacted by the employer over a six-week period despite numerous attempts to reach him. The arbitrator concluded that any other alternative steps, including confronting the employee, would have been unfeasible and unproductive.
In Re Securicor Cash Services, the arbitrator allowed the surveillance into evidence after being persuaded that, in the immediate aftermath of a large cash theft, the worker missed two consecutive shifts and subsequent visual evidence of the employer’s residence indicated suspicious behaviour.
For more information see:
• Prestressed Systems Inc. and Labourer’ International Union of North America, Local 625, March 3, 2005 (Ont. Arb. Bd.)
Videotaping an employee is a powerful tool in exposing malingering. After all, videotapes don’t lie and they don’t conveniently forget facts as some witnesses are apt to do.
But courts and arbitrators have struggled with when employers can pull that tool out of its arsenal and hire a private investigator to follow the worker.
A recent case out of Windsor, Ont., appears to have struck another blow against the use of video surveillance on an employee. At the very least, it underscores the fact that video surveillance is a tool of last resort in most cases, to be used only after an employer has exhausted almost every other avenue.
The case
Dion Roberts started working for Pre-Stressed Systems Inc. in 1998 as a general labourer. He was fired on Jan. 20, 2003. His employer claimed he had deliberately misrepresented the severity of a back injury he suffered at work in the fall of 2002.
Pre-Stressed decided to terminate Roberts after it commissioned and reviewed several video surveillance tapes. The tapes, shot covertly by a private investigator, showed Roberts during various off-work activities in public areas in the latter half of December 2002.
Michael Lynk, the arbitrator who heard the case, ruled on whether or not the employer could introduce the tapes as evidence. Roberts’ union, the Labourers’ International Union of North America, objected to the videotapes.
Pre-Stressed manufactures structural products for the construction of industrial and commercial buildings. As a general labourer, Roberts would normally rotate through a number of jobs at the plant, all of which required some physical exertion. The rotation was designed to broaden the skill of workers and reduce the chance of a repetitive strain injury.
In early July 2002, Roberts injured his left elbow at work. He continued to perform his regular duties for several weeks, but eventually went to see a chiropractor for assessment and treatment.
The employer asked Roberts to have the chiropractor fill out a functional assessment form (FAF), which is produced by Ontario’s Workplace Safety and Insurance Board. The initial FAF listed the limitations to his elbow and estimated the limitations would last two weeks. Roberts was given light duties.
But the recovery took much longer than initially anticipated. Roberts made at least five visits to his chiropractor between August and the beginning of November. The first four FAFs stated the same approximate limitations with an anticipated recovery time of two weeks in each case.
The final FAF on his left elbow, dated Nov. 15, 2002, determined that Roberts was capable of using his elbow without limitations. Roberts worked this entire time on light duties and did not miss any time outside of visits to the chiropractor.
While recovering from his elbow injury, Roberts suffered an injury to his back at work. The initial back injury happened on Sept. 24, but it was re-injured on Oct. 18. (He hurt it again after falling on a patch of ice in early December.) On Nov. 1, Roberts went to his chiropractor to address the back injury. The doctor completed a FAF with regard to his back. Among other things, it said he could do no lifting and no ladder climbing, though he could stand for up to 15 minutes.
It was estimated by the doctor the restrictions would be in place for two weeks. Following this FAF, Roberts was given light duties. This assignment lasted until the doctor cleared him for a complete return to regular work on Jan. 15, 2003.
But by early December the employer was beginning to have doubts about the extent of the injury. Roberts’ supervisor said the injury appeared to be taking a long time to heal, especially considering each FAF gave an estimated recovery time of only two weeks.
According to the supervisor, none of the injuries — the elbow or the three back injuries — were witnessed by any other employee.
On Dec. 9 an employee told the supervisor that Roberts had been speaking to several of his co-workers that morning about having played hockey the night before. That employee said Roberts was now playing hockey several times a week.
With this information the supervisor went to see the company’s health and safety co-ordinator to see if something could be done to verify Roberts’ true physical condition. The idea of videotaping Roberts was floated during this meeting.
Pre-Stress used a Windsor health and safety company, Safety Comp, to act as outside consultants. Safety Comp advised the company about health and safety, workers’ compensation and the management of its work hardening programs for injured employees.
The health and safety co-ordinator sought permission from her supervisor to authorize video surveillance of Robert’s off-duty activities. She also sought advice from Safety Comp.
She directed Safety Comp to hire a private investigation service to conduct the surveillance. At the hearing, she said she sought the surveillance because the back injury was taking such a long time to heal and that playing hockey suggested Roberts might be misrepresenting the severity of his back injury.
Between Dec. 16 and Dec. 27, 2002, Roberts was placed under video surveillance. The tapes showed Roberts walking in a residential neighbourhood, bending over to pick up an object lying on the grass, lifting a barbecue off the back of a truck at a house and playing two games of no-contact ice hockey at an indoor rink.
He was dismissed on Jan. 20, 2003, on the grounds that he had misrepresented his capabilities.
The union’s argument
The union said the employer had a duty to take other less invasive and more intermediary steps to secure the information about the worker’s true medical condition before infringing on his privacy.
The employer never asked the chiropractor why the injury was taking so long to heal, it didn’t ask him to go see a medical doctor and did not direct him to rehabilitation, the union said.
It said the arbitrator should adopt the “reasonableness” test — in this case the employer did not have sufficiently reasonable grounds to order the monitoring of Roberts, nor did it adequately explore other alternatives before commissioning the surveillance.
The employer’s argument
Pre-Stressed argued that the core of Roberts’ misconduct — the misrepresentation of the state of his recovery from an industrial injury in order to benefit by having light-duty assignments — is a serious industrial relations offence.
It said the consequences of such behaviour are:
•diminished productivity;
•higher workers’ compensation costs;
•erosion of the morale of other employees;
•removing light-duty assignments from other employees with disabilities; and
•breaching the fundamental element of employment trust.
It argued other cases suggest it is doubtful that employees have a right to privacy in Ontario. Even if they do, they do not enjoy an unlimited right, particularly in a public space, it said.
Even if the arbitrator adopted the reasonableness test argued by the union, it said it encountered all kinds of red flags regarding the employee’s recovery. It said there were no other reasonable alternatives open to it because it was a soft-tissue injury, something which is usually fruitless to refer to a physician because the medical diagnosis is largely dependent on what the employee says.
The decision
Arbitrator Lynk said there has been a great deal of cases dealing with video surveillance over the past 15 years, but Canadian labour arbitrators have yet to reach a settled position, let alone unanimity, on the proper principles to apply when assessing the admissibility of video surveillance covertly taken of an employee in a public place.
He said most reasonable employers would have wondered why Roberts was not healing faster and would have asked themselves whether or not his limitations were accurately represented or were being properly diagnosed and treated by his chiropractor.
“A reasonable employer would have had enough information to raise its suspicions,” said Arbitrator Lynk.
“A desire to investigate further to determine as to whether some employee chicanery was present or, alternatively, whether a misguided recovery process was being applied, would have been justified.”
But having a basis for suspicion that would justify further investigation is not necessarily the same thing as establishing reasonable grounds to conduct covert surveillance that would intrude upon an employee’s privacy outside of work.
The arbitrator said there was no evidence to indicate Roberts had any unsatisfactory employment history before the employer developed suspicions about the back injury. There was no abuse of sick leave, no doubtful requests to obtain light work assignments, no pattern of working unproductively or acting dishonestly or deceitfully.
The employer never considered any of the other options available to it, such as seeking a direct explanation from the chiropractor about the off-duty limitations for Roberts or asking him to go for an independent medical exam to assess the extent of the injury and the limitations, said Arbitrator Lynk.
Roberts was also co-operative with his employer the entire time he was injured, and provided updates from his chiropractor on a regular and timely basis, he said.
Arbitrator Lynk also said the evidence in this case was less compelling than in other cases where arbitrators had allowed surveillance.
Therefore, he ruled, the employer had not established that it was reasonable to undertake the surveillance.
“I do not take lightly the fact that Mr. Roberts was playing hockey while he was still recovering from his back injury,” said Arbitrator Lynk. “Intuitively, any reasonable employer would have had some concerns, or at least questions, in the circumstances.”
But he said the limitations Roberts was under while playing hockey were moderate enough that other reasonable explanations were possible.
The employer should have considered other less intrusive steps to seek answers to its questions before deciding to start surveillance.
A test for using surveillance?
Arbitrator Michael Lynk said an employer must establish a reasonable basis, based on all the circumstances, for the admission of video surveillance into evidence.
He said the following factors will be considered as part of the test:
1. A “reasonableness” test will examine: (i) whether the employer had a reasonable basis to engage in the covert surveillance; and (ii) whether the surveillance was conducted in a reasonable manner.
2. Part of the inquiry will consider whether the employer had other reasonable alternatives to employ before engaging in covert surveillance. The employer will not have to demonstrate that all other possibilities were exhausted before turning to the surveillance, but, as a factor in considering the reasonableness of the surveillance, it would have to explain why some readily available and less intrusive methods could not have accomplished the same goal.
3. Reasonableness will be measured on an objective standard.
4. What is reasonable will depend on the context. This would normally include considering such factors as: the basis of the employer’s suspicion of the employee; the nature of the potential harm to the employer’s enterprise; the degree of impairment to the trust factor; the alternatives available to obtain the required information; and the degree of intrusion caused by the particular surveillance method.
What would have justified surveillance?
Had the FAF stated that Roberts’ injury was more incapacitating, such that the participation in an activity like hockey would have been completely inappropriate, then the probability of fraud or deceit would have “almost certainly” justified surveillance, said Arbitrator Michael Lynk.
He also said he would not expect that, in every case, an employer would have to establish a troublesome prior employment record as a necessary pre-condition to satisfying the reasonableness test to conduct covert surveillance.
“One can envisage a range of persuasive situations, such as an employee with a clear prior record who has been reasonably linked to an apparent pattern of fraud or theft — that would justify the employer’s operational interests trumping the employee’s general entitlement to privacy,” said Arbitrator Lynk.
Cases where surveillance was allowed
In making his ruling, Arbitrator Michael Lynk considered a number of other cases.
In Re Canadian Pacific Ltd., the arbitrator found the employer had established a reasonable basis for the off-duty surveillance because the worker, who was claiming an injury, had previously falsified information respecting a a workers’ compensation claim, a separate medical report concluded he had been faking an injury, he had been observed walking in a manner inconsistent with his claimed injury and he had an unusual pattern of on-the-job injuries which far exceeded the employee average.
In Re Toronto Transit Commission (Belsito), the arbitrator found justification for the employer’s surveillance in the fact that the worker, while on sick leave, was not able to be contacted by the employer over a six-week period despite numerous attempts to reach him. The arbitrator concluded that any other alternative steps, including confronting the employee, would have been unfeasible and unproductive.
In Re Securicor Cash Services, the arbitrator allowed the surveillance into evidence after being persuaded that, in the immediate aftermath of a large cash theft, the worker missed two consecutive shifts and subsequent visual evidence of the employer’s residence indicated suspicious behaviour.
For more information see:
• Prestressed Systems Inc. and Labourer’ International Union of North America, Local 625, March 3, 2005 (Ont. Arb. Bd.)
