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September 30, 2009

Video surveillance of an employee can constitute constructive dismissal

Author Malcolm MacKillop

Defining an employee’s right to privacy is currently a hot topic in employment law. Recently, the Ontario Superior Court took a step toward safeguarding an employee’s right to privacy, determining that the unjustified covert video surveillance of an employee can constitute constructive dismissal. Employers who are using or considering using video surveillance to monitor employees will want to carefully consider the decision in Colwell v. Cornerstone Properties Inc., [2008] O.J. No. 5092 (S.C.J.) [“Colwell”].

Colleen Colwell was a commercial manager at Cornerstone Properties (“Cornerstone”). She discovered that a hidden camera had been placed in her office by her direct supervisor, Trent Krauel (“Krauel”). Krauel claimed that the camera was installed for the purpose of detecting theft by the maintenance staff. While there had been some instances of theft at Cornerstone, Mrs. Colwell had never had anything stolen from her office. Krauel stated that he trusted Mrs. Colwell, that he wanted her to remain in her position, and that she was not a suspect. Mrs. Colwell could not understand why, if she was not a suspect, she had not been informed of existence of the camera. The situation was compounded by the fact that the camera in Mrs. Colwell’s office was the only one that had been installed in the Cornerstone office, and by Krauel’s absurd explanation that he believed the thieves might use her office to “review the loot”. Krauel maintained his right to install the camera and refused to apologize. Mrs. Colwell felt psychologically violated and sought medical assistance for stress. She decided to leave her employment and sued Cornerstone for constructive dismissal.

The court concluded that Mrs. Colwell had been constructively dismissed. In the facts of this case, the court found that Mrs. Colwell’s employment contract contained an implied term that the parties would treat each other in good faith and fairly, not only during termination, but throughout the existence of the contract. The court found that the actions of the employer, both in installing surveillance equipment and in providing an unreasonable explanation for the surveillance, poisoned the workplace and justified Mrs. Colwell leaving her employment. The court wrote:

“The cost to human dignity caused by such surveillance, coupled with the unbelievable explanation subsequently provided, left Mrs. Colwell in a position of being unable to rely upon the honesty and trustworthiness of her immediate supervisor…
“Not only had her privacy been violated, but so had her contract of employment in that all trust had evaporated.”

The court awarded Mrs. Colwell damages equivalent to a notice period of seven months but declined to make an award for aggravated damages given that the law in the area of invasion of privacy is still developing.

The Colwell case is only one example of unwarranted surveillance and invasion of privacy, yet it prompts a broader inquiry. To what extent do employers have the right to use surveillance to monitor their employees?

Employers should note that an employee’s right to privacy is dependent on where he or she works. The law differs depending on whether a workplace is unionized, federally regulated or neither. However, the following are general guidelines for employers in determining whether video surveillance is appropriate:

• Surveillance must be reasonable: it must have a reasonable basis and be conducted in a reasonable manner.
• Employers should resort to video surveillance only when a video is likely to be effective in meeting a specific need and there are no other less intrusive alternatives that would meet that need.
• Employers should be wary of covert surveillance. Open surveillance, conducted with employee consent, is vastly different from installing hidden cameras and will be more easily justified. As the Colwell case illustrates, courts will not be sympathetic to employers found secretly spying on employees without an airtight reason for doing so.

In this rapidly developing area of law, employers should consult legal counsel before installing video surveillance. Employers should tread carefully given the trend toward recognizing and protecting an employee’s right to privacy.

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