Collecting Evidence: Searches and Surveillance
by Robert B. Reid
One of the first logical steps for an employer to take in an investigation is to
secure evidence. The better the evidence, the more correct the employer’s
decision will be at the conclusion of the investigation. This helps ensure
fairness and protects the employer against allegations of bias while providing a
defence if the employer needs to justify its actions in an arbitration hearing
or in response to a Court claim for wrongful or constructive dismissal.
Although it is counter-intuitive to restrict the employer’s ability to collect
evidence, employees and their Unions will attempt to rely on a “right to
privacy” to prevent the use of certain evidence, particularly in relation to
searches and surveillance. As well, the employee may well object to a search
and thereby prevent the collection of evidence that might otherwise be
available.
Different considerations arise in situations where a refusal to provide evidence
is given as compared with situations where the evidence is already in hand.
Requests for Search
In Ontario, it is generally agreed that there is no statutory protection of
privacy for employees except in federal works and undertakings. There is
ambiguity about whether or not the common law protects privacy and if so, at
what point. There is certainly an acknowledged right to protection from
unreasonable search and seizure under the Charter which applies in criminal
situations although an employer / employee relationship creates some different
considerations.
In general, there is an accepted hierarchy of
intrusiveness with the least serious being observation or surveillance,
progressing to a search of personal property or areas such as lockers and then
to bodily intrusions including search of the person, requirements for blood
samples etc. Within that general hierarchy has developed further levels so that
for example lunch boxes are deserving of less protection than women’s purses.
Similarly, clothing being worn seem to attract more protection than, for
example, coats that are being carried or have been left in a locker.
Labour arbitrators in unionized situations tend to be more protective of
employee privacy rights than Courts and with some consistency have protected
employees from discipline in cases where those employees have refused to allow
searches of their body or clothing.
Where an individual is asked to empty his pockets, he can refuse and not be
subject to employer discipline. An employee who fails open the trunk of his car
at the request of his employer can not likely be disciplined. However, in those
situations and where a strong probability for illegal conduct exists, the police
could be called so that their greater right of search, given reasonable grounds,
might be used.
The so-called right of privacy and its cousin the
“expectation of privacy” are most likely to be relied upon in the unionized
context. However, and keeping in mind that there are issues of fairness which
should be the hallmark of an investigation, employers are well advised to avoid
the most invasive type of searches unless the presence of highly relevant
evidence is almost indisputable.
Use of Existing Evidence
Where, as a result of a search or surveillance or some other method, evidence
has been secured by the employer, it will invariably form part of the employer’s
decision as to how to proceed with discipline or otherwise. It is at the next
stage, that is in a Court or an arbitration hearing or at some other statutory
tribunal, that the issue becomes whether or not the evidence secured by search
or surveillance is properly admissible in support of the employer’s case.
Courts and some arbitrators have taken the view that,
unless there is statutory protection of privacy, evidence should be used if it
is relevant and particularly if it is of significant weight. For example, video
surveillance which catches an employee in the act of theft or the stolen
property is found in the employee’s pocket after he has left the premises will
be of assistance to the judge or arbitrator in coming to a conclusion about the
proof of the issue.
An employee who is videotaped off the premises doing something which is
prohibited or which contradicts the employee’s previous statements (for example
working for another employer during a period of sick leave) is highly relevant
and may well be conclusive of the discipline issue.
However, the arbitrators and to some extent Courts in Ontario are far from
unanimous on the point and in many cases have relied on a notional right of
privacy under the common law to protect an employee and refused to admit the
evidence of search or surveillance except in limited circumstances. In those
cases, the issue becomes whether the search or surveillance was reasonably
necessary under the circumstances, whether it was undertaken in a reasonable
manner and whether there were other less intrusive alternatives available. In
some cases, although the Personal Information Protection and Electronic
Documents Act (PIPEDA) may not apply, the trier of fact will impute those
same privacy rights and obligations to the employment relationship.
In the “intrusiveness hierarchy” as with searches, surveillance will be less
objectionable if it is in the open and potentially more objectionable if it is
surreptitious. As well, the “expectation of privacy” will be higher in private
places than in public ones.
Conclusion
For the employer conducting an investigation, knowing
about the potential pitfalls in collecting and using evidence from search and
surveillance should influence the employer to collect as wide a selection of
evidence as possible so that if any particular piece is not deemed admissible,
the balance will still be sufficient to justify the employer’s conclusion.
Given the ease with which surveillance in particular can occur, an employer may
be well advised to use that method to secure evidence directly and to support
the search for other evidence through more traditional channels.
Lancaster, Brooks & Welch L.L.P.
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