December 11, 2002by Israel Foulon LLP
Question: I would like to know if surveillance cameras are allowed in the workplace. My employer recently installed cameras in areas where people are working and overseeing the yard. Is he required to post a sign saying the area is being monitored?
Answer: If your workplace is unionized then video surveillance may be restricted under the collective agreement. Generally, collective agreement arbitrators will take a more restrictive approach to an employer’s use of video surveillance than courts will. Arbitrators will expect employers to demonstrate the surveillance is required to deal with a significant issue. Furthermore, the method of surveillance should be reasonable and as minimally intrusive as possible. The use of video surveillance evidence has been disallowed where there was no reasonable apprehension of misconduct by employees to justify the surveillance.
In a non-unionized workplace the laws with respect to privacy are still developing. Courts are guided by considerations of how to balance an employee’s right to privacy with an employer’s right to run its business, which includes overseeing employees. Your question suggests the surveillance equipment is visible to employees. If your employer is using video surveillance for security reasons, it has a right to do so. In these cases the employer is not required to post signs indicating the premises are being monitored.
But other issues can arise where an employer is using video surveillance to detect employee misconduct and the employee is unaware he is being monitored. Such evidence may or may not be admissible in proving employee misconduct.
Whether or not this type of surveillance is a violation of an individual’s privacy rights will depend on the particular means of surveillance, its purpose and the privacy legislation in the province in question. For example, B.C. courts have held videotaping an employee sleeping on the job did not give rise to a right by the employee to damages from the employer.
- Tips for employers: Employers who wish to use video surveillance should do so only if they have no other means of dealing with the problem it is being used to address. The means of surveillance should be reasonable and minimally intrusive and should not offend the employee’s sense of dignity or self-respect.
If surveillance is going be used, a policy should be implemented which explicitly sets out the employer’s right to use surveillance equipment and to monitor use of company property. The policy should clearly state the types of employee conduct which are prohibited and that disciplinary action may be taken if misconduct is detected.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today