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HomeMy WebLinkAbout1994-0657.Garth.96-05-07EMPLOY& 0~ u COURONNE DE L’ONJARIO CQMMISSION RiiGLEMENT DES GRIEFS 780 DUNOAS STREET WESZ SUITE 2100, TORONTO ON M5G Ii!8 180, RUE DUNDAS OUESr; BUREAU 2100, TORONTO (ON) M5G lZ8 GSB # BETWEEN BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER TELEPtiONEITiLkPHONE : (416) 326- 1388 FACSIMILEIT~LiCOPIE : (416) 326- 1396 657/94, aw94 OLBEU # OLB121/94, OLB144/94" IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OLBEU (Garth) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor Employer E. Marszewski Vice-Chairperson J. Noble Counsel Ontario Liquor Boards,Employees' Union J. Baker Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers &I Solicitors HEARING October 4, 5, 12, 1995 This matter involves two grievances of Grover Garth, an employee of the Liquor Control Board of Ontario. The first grievance involves a disciplinary letter dated May 30, 1994 which suspended the Grievor with pay. The second grievance involves the dissmissal of the Grievor. The Grievor seeks re-instatement and full compensation as well as the removal of any disciplinary notes and reports from his files. Counsel for the Union was advised by Counsel for the Employer prior to the first day of this hearing that the Employer intended to introduce videotape evidence in the presentation of its case. Counsel for the Union presented a preliminary objection to the Employer’s request to the introduction of the videotaped evidence in support of its case against the Grievor. First, Union Counsel submitted that the the videotape evidence was inadmissible due to the fact that it was the result of surreptitious surveillance of the Grievor and consequently coutrary to Section 8 of the Charter of Rights. This argument relied upon the premise that the Employer was an arm of the Government of Ontario and was therefore subject to the provisions of the Charter of Rights. Secondly, and in the alternative, Counsel submitted that the introduction of the videotaped evidence against the Grievor would constitute a viofation of the Grievor’s common law right to privacy, , which violation could only be justitied in certain, particular circumstances, circumstances which were not present in this case. The surreptitions surveillance of the Grievor had been instituted without judicial authority or order. . - ri Counsel for the Employer submitted that the Charter of Rights argument 1 could not proceed on the day of the hearing as it involved a constitutional question and - --- due notice, as required by the provisions of the Courts of Justice Act, had not been provided to either the Attorney-General of Ontario or the Attorney-General of Canada. It was further submitted that such notice had to be given at least 15 days prior to the hearing. While the Union disputed the assertion that notice had to be given as submi?ted, Union Counsel agreed to proceed only with the submissions alleging the breach of privacy rights at common law and reserved the right to make submissions with respect to the Charter of Rights arguments at a later date. The Union subpoenaed Michael Pamieri, the Manager of Store #408, as it’s witness with respect to the preliminary issue. The LCBO Store #408, located at Jane and Finch, had 11 employees, IO of whom were bargaining unit members. Palmieri was the manager at this store from October or November 1993 to September 1994. The following statement made by Palm&i was filed in evidence: I am Manager of LCBO Store #408 located at 3865 Jane Street. I have worked here since November 8, 9993. Mr. Garth was a part time and then permanent full time employee for approx 17 years in total. Prior to March 29, 1994, I observed Mr. Garth with different customers. under ringing their purchases. Later, on another day he would receive money from them for the shortage from their earlier transactions. Mr. Garth was cautioned about this as these amounts were not reflected in his daily cashier balancing report. When I considered this along with the store shortages, I advised Dan Walsh of this information on April 16, 1994. At this time a CCTV system was being installed regarding improper cashier&g procedures of another store employee, Lloyd Brickley. On April 23, 1994, I removed this first tape and installed a second tape placing the date, time and my initials on a label on both tapes. I followed this procedure again for 2 more tapes on April 28, ‘i994, May 4, 1994 and 3 on May 11, 1994 I removed this tape without replacing it with another one. The first tape was turned over to Dan Walsh on April 26, 1994. The other three tapes were turned over to Dave Hadlow on May 3, May 4 and May 15, 1994. it This concludes my evidence on these matters. The surveillance cameras were installed to cover the cash area of the store and were programmed to go on and off at certain times. Palmieri testified that he was concerned with the store’s high losses, a concern which was directly within the scope of his responsibilities as Manager. He had suggested to his District Store Manager that the surveillance cameras be instatled to enable Lloyd Brickley’s cashiering procedures to be observed. The videotaped evidence came from one camera which recorded each of Brickley and the Grievor as they worked the same cash register but on different shifts. The cash register in question also happend to be the furthest from Palmiert’s office. Lloyd Brickley, the other employee mentioned in Palmieri’s statement, was terminated due to his improper handling of funds. Palmieri’s statement was given to LCB.0 security sometime around April 1994. As indicated in the statement, Palmieri testified that the Grievor had been ‘underringing’ customer purchases. The term “underringing’ was used to describe a process whereby the cashier, when met by a customer )V)O was short of- the required cash for his or her purchases, allowed the customer to take those purchases out of the store upon receipt of an undertaking by the customer to give the cashier the balance of the amount owing at a later time. . Garth had been “underringing” customer purchases, - 4 later collecting the remainder of the monies owing by the customers. The Grievor’s behaviour was unusual and different from that of other store employees. Palmieri also I testified that the grievor was very friendly with customers. He observed numerous times when customers come in specifically asking for the Grievor and upon being told that he was away from the store, they left without making a purchase. Palmieri testified that he had verbally counselled the Grievor to stop ‘underringing’ customer purchases. Up until that point, the Grievor had not been disciplined for theft. On April 16, 1994, Palmieri spoke to Walsh, the LCBO security investigator, and discussed both the ‘underringing’ practise as well as the extremely high store shortages. Palmieri also testified that the store was overstocked with 50 ml. miniature bottles. He explained that this situation arose because the cashiers were ringing in miniatures when in fact they were selling larger bottles. Consequently, there was an excess supply of the small bottles and a shortage of the large, 40 oz. bottles of liquor. In speaking to his superior, Palmieri noted that the Grievor “did not always take the full dollar amount for the purchases”, that he “was observed receiving money from customers two and three days after the event and putting his hands presumally with money in his pocket” and that his ringing off procedues were “irregular”. Palmieri recalled discussing these matters with the Grievor although Palmieri was not sure that he had spoken to the Grievor about the fact that the latter had been observed f%rfting his hands in his pockets. 5 The Employer called Yolanda Simone, the LCBO Acting Supervisor of Benefit Services since September, 1995. Previously, as the Human Resources advisor, Simone had been involved’ in disciplinary issues at Steps 2 and 3 of Grievance proceedings. She testified that the LCBO had been involved in videotaping employ’&% in its various stores since 1989-1990. During her work for the Employer in the Human Resources function, she testified that between three and five employees were discharged annually as a result of videotaped evidence. She further testified that the Union had not objected to the use or introduction of videotape evidence. According to Simone, the Manager of a store would normally contact the District Manager who in turn contacted the Security Services office. Due to the fact that there are a limited number of surveillance cameras, and their installation and use are time intensive, cameras are not installed unless there are concrete reasons for doing so. She did not recall any objections made on behalf of employees involving the employees ’ right to privacy argument. An employee’s right to privacy can arise by virtue of the application of a specific provision in a Collective Agreement which may set out the right explicitly or give rise to its inference by implication. In.addition, the right to privacy might arise by virtue of the application of statutory provisions, such as the amlication of the Privacy Act in British Columbia, the provisions of which were considered in the decision in Re: Doman Forest Products Ltd., New Westmister Division and International Woodworkers, - -- 6 Local l-357 (1990) 13 L.A.C. (4th) 275 (D.H.Vickers). Employees may also claim a right to privacy in circumstances where their employment relationship is subject to the provisions of the Canadian Charter of Rights. r - In the instant case it has been recognited by the Union that there is neither a provision in the parties’ collective agreement nor a legislative provision which might give rise to a right to privacy. Moreover, the parties have agreed to defer their submissions with respect to the applicability of the provisions of the Charter of rights pending an interim determination with respect to the issue of the admissibility of the videotaped evidence and the question of whether or not there is a common law right to privacy which might apply in the instant case. The Union has asserted that an employee can also have a right to privacy which is grounded in the common law and supported by arbitral jurisprudence, The Union thus took the position that the common law right to privacy applies in the instant case, precluding the admissibility of the surreptitious videotape surveillance evidence of the Grievor. While the Union agreed that such a common law right is limited by legitimate needs of an Employer, such as the need to maintain the honesty and integrity of employees in positions of trust, it did not feel that such limitations were appropriate in this case. The Union relied upon the decisions in Re Labatt Ontario Breweries (Toronto Brewery) and Brewery, General & Professional Workers Union, Local 304 (1994) 42 L.A.C. (4th) 151 (G.J.Brandt); Re U&ersity Hospital and London & District Service Workers’ Union, Local 220, (1981) 28 L.A.C. (2d) 294 (P.C.Picher), Re Accuride Canada and Canadian AutsPmobile Workers, Local 27 (1992) 29 L.A.C. (4th) 137 (B.Welling); Re United Automobile Workers, Local 366, and Comco Metal Products Ltd (1972) 23 L.A.C. 390 (H.D.Brown); Re Royal Oak Mines Inc., Yellowknife Division and Canadian Association of Smelter & Allied Workers, Local 4 (1991) 24 L.A.C. (4th) 221 (R.B.Bird, QC.); Re Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild, Local 87 (1992) 30 L.A.C. (4th) 306 (I. Springate); In the Employer’s submissions, there is no overriding common law right to privacy which can be derived either from any of the traditional sources or from any arbitral awards. In tfris context, Counsel for the Employer cited the old common law rights of the privacy of the body and the privacy of one’s personal property, breaches of either of which led to the traditional torts of assault, tresspass to body or tresspass to property. The underlying principle referred to by Counsel for the Employer is that the employment contract does not extend to the private life of an employee away from work unless there is a good business reason for it. In support of its submissions, Counsel for the Employer relied upon the decisions in: Re Cameo (supra), Re University Hospltal(supra), Meszaros v Simpson Sears (July 18, 1979) 19 A.R. 239 (Alta Queens Bench); New Domlnion Stores (Division of Great Atlantic & Pacific Co of Canada Ltd.) and Retail, Wholesale & Department §tore Union, Local 414 (1992) 28 L.A.C. (4th) 53 (R.A.Grant) LCBO vs. OLBEU (Linton), June 29, 1995 (0. Gray), LCBO vs OLBEU (Campanaro) January 13, 1995 (M. Watters); Greenough v. Woodst&m Corp. (Jan. 17, 1991, Ont. Ct. (Gen. Div.), Fleury J.) . 8 The issue that is raised in this case is whether the admission of surreptitious videotape surveillance evidence as real, substantive evidence (and not merely as corroborative evidence) against the grievor constitutes a breach of the grievor’s general common law right to privacy, absent considerations of the provisions contained in the Charter of Rights. In the civil context, the Greenough decision (supra), a 1991 Ontario General Division case, is said to be the first civil case in Canada which permitted a videotape to be admitted as real, substantive evidence. In that case, the videotape camera was concealed in the ceiling of a specific area of the plant and recorded the activities in its field of vision, including the activities of Greenhough, one of the employees at the plant. As a result of the videotape evidence, Greenhough was dismissed for having engaged “in the theft of company property.” The trial judge viewed the evidence and concluded that Greenough’s conduct amonted to ” aiding and abetting the commission of an offence.” Approximately one year ealier, in the labour relations context in British Columbia, a similar issue involving the admissibility of videotape surveillance evidence was considered in what was cited by Union Counsel as one of the leading cases, Re Doman (supra). However, in that case, the arbitrator inctided consideration of both the fundamental values enshrined in the Constitution in the Charter of Rights and of the provisions of the British Columbia Privacy Act. The considerations in that award are ,“- -- - ’ -- 9 therefore marginally helpful in the instant case, given the lack of equivalent legislation in Ontario and given the parties agreement to defer consideration of Charter issues. However, even in the context of the Charter considerations and the B.C. privacy legislation, the award took into account that the right to privacy is not absolute. In’ that context, it had to be balanced against various considerations set out in Section 1, Subsections (1) to (3) of the statute, including whether the surveillance was “reasonable in the circumstances “ , whether “due regard . ..[is] given to the lawful interests of others” and that “regard shall be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.“. The .final subsection of Section 1 provides that “Privacy may be violated by...surveillance...but this subsection shall not be construed as restricting the generality of subsections (1) to (3). The arbitrator concluded: . . . ..I cannot determine whether the grievor’s right to privacy has been abused until I have heard all of the evidence, including what was done and what was observed, whether visually or electronically. It would be dangerous at this stage of the proceedings to rule evidence inadmissible where I have not had a full opportunity to consider all of the circumstances. Only then can I truly balance the interests. If, upon hearing the evidence, I am satisfied that there has been an invasion of privacy in circumstances which were unreasonable, I would then not hesitate to rule the evidence inadmissible. Accordingly, my decision at this point in the proceedings is that the evidence is to be called subject to the objections of the union, which I will rule upon in my final award. 4 4 I agree with the procedural conclusions set our by arbitrator Vickers in the Re Doman award and follow them in the instant case. If there is no common law right to privacy applicable in Ontario, then this hearing would inevitably continue with the 10 Employer’s evidence, which in this case involves the production of its videotapes subject to the usual technical evidentiary requirements. If there is some type of common law right to privacy in Ontario, and this does not appear to be clear from the cases that have been cited herein to date, such a right to privacy must be, inevitably, balanced by various considerations such as, perhaps, those listed in the B.C. legislation. I will allow the parties to make such submissions as are deemed to be appropriate or necessary upon the completion of the evidence in the circumstances of this case. This procedural ruling must be specifically restricted in its applicability to the very specific facts before me, including: 1. the absence of statutory or collective agreement provisions, 2. the deferral of submissions with respect to the applicabilityof the Charter of Rights. 3. we are not dealing, at least as the case has been argued to date, with the traditional tort situations involving assault, trespass to body or trespass to property, issues raised in the inspection of locker cases or the medical or other physical examinations of employees, to cite but two types of cases, - 44 4. the fact that the videotape surveillance appears to have been carried out in a public place fully accessible to customers and the public, so that we are not 11 dealing with surrep titious surveillance of an employee’s private office or private residential space, 5. the grievor was working at the cash register and therefore is clearly operating in a significant position of trust vis a vis his employer. In the context of my conclusions as set out above, the introduction of the videotaped evidence is hereby allowed subject to any further objections by the Union and subject to the parties’ final submissions in this case. Dated at Toronto this 7th day of May, 1996. Eva E. Marszewski - Vice Chairperson 44