Video Surveillance

So you are considering hiring our firm to conduct a surveillance in the workplace but you are not too sure about the legalities. This is an article for you. First of all, you have come to the right firm!

An employer does not require an employee's consent to conduct a surveillance in the workforce when the matter is relating to a breach of agreement or contravention. Secondly, consent is not required when the collection of information would defeat the purpose for which it was collected as per Section 7(1) (b) of the Person Information Protection and Electronics At. (PIPEDA).

When the video surveillance is conducted in a reasonable and justifiable manner, an employer is permitted to utilize our services for the purposes of uncovering fraud or theft. For example, if your employee is disabled and off work, and you have evidence or suspect he/she is working elsewhere; you have reasonable grounds to hire our firm. So the question would be, "What is reasonable"?

A reasonable surveillance may include following the employee during the time he/she is suppose to be working to verify any activity that may adversely affect the employer's interests. In these particular circumstances, detecting or preventing fraud will certainly outweigh the privacy interests of an employee.

For example, employees of CPR filed a complaint with the Privacy Commissioner after finding out the company installed digital cameras near the yard entrances at their maintenance and repair section in Toronto. The employees found these cameras were intrusive and violated their privacy as any evidence collected could inadvertently be used against them. However, it was management's position these cameras were not intrusive as they were posted at the entrances to deter theft and vandalism. Signs were also visible informing the employees of the cameras.

Under Section 5(3) of the PIPEDA, it states that an organization can collect, use an disclose information only for the purposes that a reasonable person would consider appropriate.

The Privacy Commissioner investigated the complaint and addressed four areas of concern such as:

1). Are the surveillance cameras reasonably necessary to meet a specific need?

2). Will the surveillance cameras be effective in addressing that need?

3). Does the loss of privacy outweigh the benefit of the need?

4). Are there any other methods that can be used to meet the need that are less intrusive?

The Commissioner ruled the cameras did not effectively meet a specific need as there had been no acts of vandalism since the installation of the cameras. It was her position the mere presence of the the cameras would deter vandalism and theft. She also found the cameras would inevitably give the impression that employees were being monitored.

According to her findings, the employer did not consider less intrusive methods and concluded a reasonable person world not consider these cameras to be warranted. She found the the cameras to be in contravention of Section 5(3) of the PIPEDA. They employer was requested to remove the cameras. (Case 114.)

CPR did not remove the cameras. An application was made in the Federal Court on behalf of one of the employees to remove the cameras.

In 2004, Justice Lemieux ruled differently in his decision. (http://decisions.fct-cf.gc.ca/fct/2004/2004fc852.shtml). He looked at the same issues of the Commissioner and found the cameras were appropriate in this situation given warning signs were posted. He ruled the collection of video surveillance was not intrusive on the basis that it was not just limited to the employees and they were not being filmed on an ongoing basis. He considered other factors to be considered in their usefulness, including the prevention of further acts of crime.

Justice Lemieux ruled "CP benefits from the exemption provided for in paragraph 7(1)(b) of PIPEDA", and the consent of the employee is not required to collect the information. He concluded the collection of the video evidence is reasonable relating to a breach of an agreement or contravention of the laws of Canada.

So the question that you need to ask yourself is:

Is there a need for the surveillance?

The question that we will ask ourselves?

Is the surveillance reasonable?

We always ensure our surveillances are reasonable. That is, we follow the subject during the time that he or she should be working and we also ask the question, "is there a reasonable expectation of privacy". There is no reasonable expectation of privacy when the individual, or claimant is out in the public.

By Janie A. Duncan,

©Copyright, 2006 Duncan Investigations