Video Surveillance can Constitute Constructive Dismissal

Authors: Malcolm MacKillop and Alison Adam

 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, according to an employment law and labour bulletin from the employment law firm Shields, O’Donnell, MacKillop in Toronto, Ont.

Colleen Colwell was a commercial manager at Cornerstone Properties. She discovered that a hidden camera had been placed in her office by her direct supervisor, Trent 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, Colwell had never had anything stolen from her office. Krauel stated that he trusted Colwell, that he wanted her to remain in her position, and that she was not a suspect. 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 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. 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 Colwell had been constructively dismissed and found both installing surveillance equipment and providing an unreasonable explanation for the surveillance, poisoned the workplace and justified Colwell leaving her employment.

The Court awarded 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.

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 this 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.

Published in Your Workplace magazine issue 11-6

Malcolm MacKillop and Alison Adam practise employment law with the firm Shields O’Donnell MacKillop LLP of Toronto. Article adapted from Snapshot, Oct. 2, 2009, the Employment & Labour Bulletin of Shields, O’Donnell, MacKillop. For more information visit www.djmlaw.ca.