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HomeMy WebLinkAbout2003-3923.Goncalves.05-02-11 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-3923 UNION# OLB048/04 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (Goncal ves ) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Joseph D Carner Vice-Chair FOR THE UNION Jackie Crawford Koskie Minsky LLP Barnsters and SOlICItorS FOR THE EMPLOYER Gordon L Fitzgerald Counsel LIqUor Control Board of Ontano Written Submissions November 15 2004 2 Intenm Award The gnevance before me relates to the dIscharge of John Goncalves an employee of the LIqUor Control Board of Ontano The grounds for the termInatIOn of the Gnevor apparently had to do wIth the alleged Improper use of the "air mIles" program In whIch the Employer IS a partIcIpant. Be that as It may the Issue currently before me relates to the admIssIbIlIty of vIdeotape eVIdence whIch the Employer seeks to Introduce In the proceedIngs The Umon challenges the IntroductIOn of the tapes on the folloWIng basIs 1 The Employer had no reasonable grounds to ImtIate surveIllance ofMr Goncalves 2 The surveIllance was not conducted In a reasonable manner 3 The vIdeotape matenal must be excluded because ItS collectIOn and use would constItute an unreasonable IntrusIOn Into the Gnevor's pnvacy The Employer takes the posItIOn that the vIdeotape matenal should be admItted for the folloWIng reasons 1 The matenalIs relevant; 2 In Ontano there eXIsts no nght to pnvacy In employment settIngs, and even If such nght eXIsts the Gnevor's pnvacy nghts dId not anse In the CIrcumstances of thIS case 3 Any Issue concermng the reasonableness of grounds to InstItute surveIllance do not anse on the facts of thIS case and, If such test IS appropnate the Employer has satIsfied such reqUIrements, 4 From a practIcal standpoInt based on labour relatIOns consIderatIOns It would be Inappropnate to dIsallow the IntroductIOn of the matenal 3 The Back2round The tapes whIch the Employer seeks to Introduce presumably provIde Images of the Gnevor and customers of Store #10 where the Gnevor worked dunng the relevant tIme The tapes reflect transactIOns InvolvIng air mIles cards allegedly processed by the Gnevor dunng the month of December 2003 The CIrcumstances resultIng In the targetIng of those tapes began on December 23rd of that year The Gnevor was a Customer ServIce RepresentatIve and had been workIng In Store #10 for the Employer SInce October 2003 On December 23rd hIS Manager observed that he was weanng Inappropnate attIre (jeans) for work and dIrected hIm to leave the premIses The Gnevor sought to stay untIl he had completed delIvery of a purchase he had made on behalf of a customer who was expected to pIck It up at the store The Manager Mr Begley revIewed the paperwork for the transactIOn to whIch the Gnevor referred and notIced that an air mIles card had been credIted whereas the customer had not yet attended at the store That seemIng Irregulanty led to a senes of Inqumes by the Manager and hIS DIstnct Manager Mr Rafik LoulI Those InVestIgatIOns culmInated In the dIscovery of a senes of transactIOns InvolvIng air mIles cards ostensIbly belongIng to the Gnevor and/or hIS spouse In partIcular some of the more recent transactIOns dunng December of2003 whIch took place at Store #10 could be traced through Company documentatIOn to specIfic tIme frames Those tImes were then lInked to tapes whIch the Company had retaIned for the month of December The vIdeo Images of the partIcIpants In the transactIOn were apparently captured and could be vIewed on tape whIch the Company had yet to erase It IS the tapes of several of such transactIOns whIch the Company seeks to Introduce dunng these proceedIngs 4 In Its outlIne of the facts the Company provIded the folloWIng InformatIOn concermng the cameras In Store #10 and Its practIce WIth respect to the resultIng vIdeotapes "4s part of the Emplover's investigation, AIr Louli also reviewed some videotapes. H" wm, of hackground and to clarifi the explanation provided in the [Tnion's suhmissions, there are 32 cameras in "'tore 1 0 providing coverage of virtualh the entire store The cameras images are recorded simultaneoush in a split screen format on three master videotapes. There is nothing surreptitious about the use of these cameras, thn are there to protect LCBO emplovees, customers and assets and are visible to anvone in the "'tore The tapes are retained for re-use on a 1110nthh basis. Tapes are general!" numbered 1 through 31 with the numbers corresponding to the davs of the month. "'0 for example, tapes numbered "1" are used on the first da" of the month and then set aside until the first da" of the next month when thn are taped over In effect, the svstem creates tapes with a "shelf-life" of one month. 4fter obtaining the FQA report referred to above and the Electronic Journals (receipts) from transactions processed b" the grievor on the davs in question, the Emplover retrieved the videotapes still in its possession for dates on which there are impugned transactions. 'lpecificalh the video tapes captured transactions involving Als. Oducado's (Als. Oducado is the spouse of the Grievor) card that were processed h" the grievor on Decemher (>) 9 11 and 19 2003 B" matching the time on the videotape to the time on the receipts, the Emplover was ahle to ohserve the customers involved in the impugned transactions. The customer making the purchasers) on Decemher (>) is another LCBO emplovee that works in '>tore 10 The customers involved in the other purchases are each different. The foregoIng should suffice as an outlIne of the facts relevant to and necessary for the decIsIOn respectIng the challenged eVIdence As IndIcated In the quotatIOn from the Employer's submIssIOns, the cameras are not hIdden and all employees, If not all customers, would be aware of theIr presence and the fact theIr actIvItIes are beIng recorded, In partIcular In the cash areas of the Store The Submissions The Umon dId not challenge the eXIstence of the cameras In the workplace or rather In the Store nor dId It challenge the use of vIdeotapes In conjUnctIOn wIth those cameras The Employer asserted that the cameras were there for the safety of the Store, the Store's property and the employees themselves In the cIrcumstances, the Umon dId not seek the removal of the cameras or the vIdeotapIng eqUIpment from the Store Rather the Umon challenged only the 5 admIssIbIlIty of the resultIng eVIdence for those reasons whIch were IdentIfied earlIer and whIch are repeated here as follows "1 The Emplover had no reasonahle grounds to initiate surveillance of AIr Goncalves, 2 The surveillance was not conducted in a reasonable manner 3 The [Tn ion submits that the videotape evidence must be excluded because its col!ection and use constitutes an unreasonable intrusion into AIr Goncalves' privan " The Umon's argument was based upon the folloWIng senes of submIssIOns 1 Employees do enjoy a nght to pnvacy In the workplace 2 That the employee's nght to pnvacy In the workplace may be encroached upon through surveIllance where there are legItImate reasons to Introduce momtors The IntroductIOn of surveIllance entaIls a balancIng of Interest between the employee's nght to pnvacy and the Employer's Interest IncludIng for Instance the safety and secunty of the premIses as well as that of the employees themselves, 3 The product of any such surveIllance such as vIdeotape eVIdence may only be used for the purposes for whIch the surveIllance was Introduced In the first Instance 4 In the case at hand although the purpose of the surveIllance was legItImate In the first Instance, that purpose would be perverted by the admIssIOn of the vIdeotape eVIdence for purposes of dIscIplIne of an employee In thIS case Mr Goncalves The IntroductIOn or admIssIOn of the vIdeotape eVIdence would constItute a retroactIve or a retrospectIve InvalIdatIOn of such matenal eVIdence In counsel's words "In seeking to reh on these tapes for a purpose quite different from that for which thn were made, the Emplover retroactiveh eliminates the balancing test required in determining whether the surveillance is legitimate. " In support of ItS submIssIOns the Umon referred to the folloWIng cases 1 Labatt Brewenes and SGPWU Local 304 (1994) 42 LAC (4th) 151 (Brandt) 2 Toronto TrasIt CommIssIOn and AMTU Local 113 (1999) 95 LAC (4th) 402 (Chapman) 3 Puretex KmttIng Co Ltd. And CTCU (1979),23 LAC (2d) 14 (EllIs) 4 Michel G PIcher "Truth, LIes and Videotape Employee SurveIllance at ArbItratIOn" [6 C.L.E.L J] 346 5 Ross V Rosedale Transport Ltd. [2003] C.L AD No 237 (Brunner) 6 6 CanadIan PacIfic Ltd. And B.M.W.E (Chahal) (1996) 59 LAC (4th) III (PIcher) 7 ErwIn Eastmond and CanadIan PacIfic RaIlway and Pnvacy CommISSIOner of Canada [2004] FC 852 The Employer's posItIOn was fourfold and set out SUCCInctly In counsel's submIssIOns as follows "The Emplover's argument will he structured under the fol!owing four suhject headings. 1 Relevance. The "vumher One rule governing the admissihilin of evidence is relevance There must he compelling reasons to exclude othenl'ise relevant and prohative evidence from an arhitration hearing There are no such reasons to exclude the evidence in this case and to do so would he inconsistent with the polin reasons underpinning s.48(12)(j) of the Ontario Lahour Relations 4ct, 1995 2 Right to Privac, There is no right to privan in emplovment settings governed b, Ontario legislation. 4lternativeh if there is GIn right to privan in those emplovment settings, that right is not engaged b, the facts of the present case 3 Reasonableness Test. The reasonableness test that the [Tn ion asserts is applicable in the present case is based on questionable law and in GIn case is inapplicable to the facts in the present case. 4t most, the reasonableness test onh applies to surreptitious sunJeillance undertaken awa, from the Emplover's premises when the emplovee has a reasonable expectation ofprivac, In the alternative the Emplover meets the reasonableness test applicable in these circumstances. 4 Practical Concerns. it would he had for lahour relations hetween the parties, undermine the integrin of the grievance procedure and he a hreach of natural justice if the grievor were permitted to exclude evidence that ma, confirm or refute his defence to the Emplover's case. 4lternativeh if the evidence is excluded, there should he an adverse inference drawn against the Grievor " In makIng ItS submISSIOns the Employer referred to the folloWIng cases 1 Re Greater Niagara TransIt CommISSIOn and Amalgamated TransIt Umon, Local 1582 (1987),61 0 (2d) 565 (DIV Crt.) 2 Re Toronto TransIt CommISSIOn and AT U Loc 113 (Russell) (1999), 88 L AC (4th) 109 (ShIme) (QUIcklaw copy) 3 Re KImberly-Clark Inc and I.W A Canada, Local 1-92-4 (1996) 66 L.AC (4th) 266 (Bendel) (QUIcklaw copy) 4 Re Toronto TransIt CommISSIOn and AT U Loc 113 (Fallon) (1999),79 L AC (4th) 85 (Solomatenko) (QUIcklaw copy) 5 Re TransIt Windsor and AT U Loc 616 (OrsI) (2001),99 L AC (4th) 295 (Brandt) (QUIcklaw copy) 6 Re CanadIan Timken Ltd. And Umted Steelworkers of Amenca, Local 4906 (HutchIn Gnevance), (2001) 98 L AC (4th) 129 (WellIng) (QUIcklaw copy) 7 7 R v Duarte (1990) 65 D.L.R. (4th) 420 (S C C) (QUIcklaw copy) The Decision As IndIcated earlIer the partIes are In agreement that, In Ontano there IS no legIslatIOn dIrectly affectIng the Issues at hand. AccordIngly If employees do enjoy a nght to pnvacy In Ontano It does not flow dIrectly from any pIece of legIslatIOn and, at best, may be ImplIed from junsprudence recogmZIng the eXIstence of such a nght. Before entenng Into an eXamInatIOn of the junsprudence wIth respect to pnvacy nghts of employees It IS, I thInk, Important to consIder first what thIS case IS not about In order to narrow the Issues and focus on those elements concernIng pnvacy whIch are relevant to the facts at hand. To ItemIze, thIS case IS not about 1 SurreptItIOus surveIllance of an employee's actIvItIes away from the workplace 2 SurreptItIOus surveIllance of employees wIthIn theIr workplace 3 SurveIllance cameras and vIdeotapes the eXIstence of whIch wIthIn the workplace have as such, been challenged by the Umon, 4 AccordIngly and sImply put, thIS IS not a case In whIch the Gnevor can say that he was surpnsed that hIS actIvItIes and those of customers wIth whom he was dealIng were captured by cameras and sImultaneously recorded on vIdeotape SInce the Umon has made none of the challenges whIch I have outlIned above, the only Issue to be determIned IS whether or not the Images captured on the vIdeotapes recovered by the Employer should be admItted Into eVIdence Should they be refused on the basIs contended for by the Umon? That contentIOn IS that the use of the vIdeotapes for what now amounts to dIscIplInary purposes would be Improper That argument IS premIsed on the proposItIOn that surveIllance eVIdence wIthIn the workplace may be legItImate or JustIfiable for the purpose of the protectIOn of the Employer's property and/or ItS employees, however when It IS attempted to rely 8 on that eVIdence for other purposes such as the dIscIplIne of an employee, In thIS case the Gnevor It constItutes an unjustIfiable InVaSIOn of hIS pnvacy nghts In such CIrcumstances It IS the Umon's contentIOn that It cannot be used for those purposes and should not be admItted In thIS heanng. Of course, In order for the Umon to succeed It must first be determIned that employees do have a nght to pnvacy In the workplace If so what IS the nature of that nght and does It pertaIn In all cIrcumstances? If, In the cIrcumstances, the nght to pnvacy does pertaIn, can It be relIed upon to exclude from admIssIOn what IS otherwIse conceded to be relevant eVIdence? Indeed, In thIS case the Umon does not argue that the eVIdence may be Irrelevant; rather as I understand the eVIdence, It mIght prove not only to be relevant but also capable of substantIatIng the explanatIOn gIven by the Gnevor for the Impugned actIvIty What test, If any should be applIed to determIne whether or not relevant eVIdence should be excluded because It constItutes a vIOlatIOn of employees' pnvacy nghts? Although I have IdentIfied several Issues here whIch mIght be addressed In thIS case, It may prove unnecessary to determIne all of them gIven the peculIar nature of the facts at hand. In partIcular as IndIcated the Umon has not challenged the eXIstence of the cameras, the constant surveIllance wIthIn the store or the recordIngs whIch are made These It acknowledges mIght well constItute a reasonable IntrusIOn Into any pnvacy nghts employees enjoy SInce they were Introduced for the purpose of the safety of the store, the Employer's property and employees themselves I have revIewed the many cases submItted by counsel and, whIle they are helpful wIth respect to the vanous VIews of many arbItrators regardIng the eXIstence of employees' pnvacy nghts, the vast majonty of those cases dealt wIth surreptItIOus surveIllance away from the workplace Those were, therefore, of lIttle assIstance WIth respect to the specIfic Issue raised by the Umon here NotwIthstandIng that, It IS Important to recogmze the sIgmficance of those cases wIth respect to the eXIstence or non-exIstence of employees' pnvacy nghts In general 9 HavIng consIdered the vanous cases submItted, I am of the VIew that the analysIs provIded by arbItrator Owen ShIme In the Toronto TransIt CommISSIOn and Amalgamated TransIt Umon, Local III (Russell) 88 L.AC (4th) 109 (O.B ShIme) released In November 1999 best canvasses the possIble sources, aSIde from legIslatIOn, for an employee's nght to pnvacy In Ontano I concur wIth hIS findIng at page 113 that there does eXIst an employee nght to pnvacy In Ontano "Tf71ile there is a distinction to he drawn hetween state surveillance and the "ordinan ohservation of others" and while the Charter cases have no application to cases such as this where the sunJeillance is conducted b, private individuals, nonetheless, it is our view that the ,,'upreme Court of Canada has recognized that there is a degree of privan we can reasonabh expect to enjo, in a free socien " AccordIng to ArbItrator ShIme, whether or not an employee can avaIl hImself of the protectIOn of that nght to pnvacy wIll depend upon an InqUIry Into whether or not the person or employee had a reasonable expectatIOn of pnvacy In the locatIOn or In the partIcular cIrcumstances [See the bottom of page 113 and top of 114] At that juncture In hIS decISIOn, ArbItrator ShIme (at the top of page 116) expressed "the VIew that the off duty surveIllance of sIngle employee who has made a potentIally fraudulent claim dIffers from the sItuatIOn where the employer seeks to vIdeotape the entIre workforce on or at the employer's work sIte" AccordIngly hIS subsequent findIngs are not specIfically applIcable to the facts at hand. However hIS approach remaInS helpful and was endorsed by ArbItrator Brandt In hIS 2001 award InvolvIng TransIt Windsor (supra) It was ArbItrator Brandt who authored the Labatts (supra) decIsIOn relIed on In part by the Umon here but from whIch approach the arbItrator hImself resIled In the TransIt Windsor case prefernng Instead the approach adopted by ArbItrator ShIme 10 ArbItrator ShIme, havIng confirmed hIS VIew that employee pnvacy nghts do eXIst In Ontano proceeds to examIne the nature of the arbItral InqUIry where surveIllance eVIdence has resulted In dIscIplIne At page 116 In addressIng matters of dIscIplIne, he postulates a balancIng of Interests between employers and employees as follows "4rhitrators have alwavs demanded that there he some element of due process where an emplover disciplines or discharges an emplovee for just cause. The concept of "due process" is interwoven with the concept of'just cause" For example arbitrators have alwavs demanded that the emplover spel! out the grounds for discharge, or insisted that emplovees have proper union representation in discussions with the emplover Thus, as part of that due process, there is some basis for balancing the competing interests of the emplover and the emplovee b, requiring an emplover to demonstrate that there was a reasonable basis for invading a person's privan before such evidence is admitted. Given the issues at stake, and while we have aclo1Owledged the difference between situations where the state is involved, it is our view that just as in criminal matters where the state ma, be required to obtain a judicial warrant before invading an individuals privac, so too as a matter of arbitral due process should an emplover demonstrate that the is a reasonable basis for sunJeillance before the emplover intrudes on an emplovee's reasonable expectation of privan " HavIng IdentIfied those sItuatIOns In whIch a balancIng of Interests would take place, ArbItrator ShIme clanfied that before asseSSIng whether or not there was a reasonable basIs for surveIllance by the Employer It must first be clear that the employee possessed some nght to pnvacy whIch In the CIrcumstances reqUIred protectIOn. At page 117 In addressIng the nght of the employee he states In the award "As we have IndIcated, we are prepared to reqUIre a precondItIOn where that nght may be Infnnged The refusal to admIt eVIdence must be grounded or based on some nght possessed by the employee IS the only basIs for eIther refusIng eVIdence or requmng a precondItIOn where the gathenng of eVIdence IS otherwIse lawful and relevant." 11 After then acknowledgIng that targetIng and folloWIng a person In a publIc locatIOn IS dIstasteful, concludes (at top page 118) that "surveillance in a puhlic place even if it is an invasion of privac, hut where a person does not suhjectiveh have a reasonahh expectation ofprivac, or where there is not an ohjectiveh reasonable expectation of privan does not rank high on the scale of privac, issues. " The Board allowed the surveIllance eVIdence wIthout requmng the employer to satIsfy any precondItIOn that there was a reasonable basIs for the surveIllance In the first Instance As to whether a locatIOn can be consIdered pnvate or publIc, the Board felt that that Issue was "best left to evolve In the arbItral case law because the possIbIlIty of many dIfferent kInds of CIrcumstance that may anse" WhIle I am In agreement wIth ArbItrator ShIme's VIew that an employee's expectatIOn of pnvacy In a publIc place does not rate hIghly that does not mean that It IS totally InsIgmficant or wIthout ment whatsoever In the case at hand, the retaIl area of the LCBO's store where the gnevor worked was a relatIvely publIc area wIth open shelves and customers and staff mIllIng about the entIre store at random In the cIrcumstances, I would not rate the employee's nght to pnvacy very hIghly Indeed, It IS doubtful that employees themselves would expect any sIgmficant degree of pnvacy In theIr actIvItIes WIthIn the open store Be that as It may there could well be some of theIr actIvItIes, even WIthIn that settIng, that employees mIght reasonably consIder pnvate for Instance whIspered conversatIOns wIth co-workers Therefore, employees mIght expect some small degree of pnvacy wIthIn even that publIc work settIng. NotwIthstandIng that employees mIght have some margInal expectatIOn of pnvacy even wIthIn such a settIng, that expectatIOn must on balance gIve way to the Employer's Interest In protectIng 12 the safety and secunty of Its store and Its employees at large That the scales weIgh In favour of the surveIllance In thIS case IS recogmzed WIthIn the Umon's submIssIOns as follows "LCBO emplovees accept, willingh or unwillingh that surveillance hreaches their privac, hecause the emplover's interest in securin - and the emplovee's interest in safen and securin - is understood to be a justifiable interest counterbalancing the breach of privan In other words, the loss of privan is exchanged for the increased securin The exchange would he qualitativeh different if the purpose of the surveillance was the random accumulation of information with the potential to he used as evidence for the discipline of emplovees, should discipline appear warranted at some later date. In the [Tnion's submission, had deliberate, individual sunJeillance ofldr Goncalves been initiated on December 8th 9th 11th and 19th before the events of December 23 rd. giving rise, in the Emplover's account, to the investigation, the Emplover would be unable to meet the test for reasonableness of sunJeillance and would not, therefore be able to reh on the videotapes in this arbitration. " In all the CIrcumstances It IS clear that the surveIllance and the vIdeotapIng of the surveIllance IS a JustIfiable IncursIOn Into any pnvacy nghts of the employees The questIOn raised by the Umon In the challenge IS to the effect that the eVIdence IS now beIng tendered for a purpose other than that for whIch It was collected. In short, the surveIllance was for the secunty of the store and the employees and It IS now beIng offered In support of the dIscIplInary measure agaInst one of the employees whom It was ongInally Intended to protect. ThIS the Umon contends IS an Inappropnate use of the vIdeo matenal whIch ought not to be countenanced at arbItratIOn. In support of that submIssIOn the Umon relIed on two cases, In partIcular that Puretex KmttIng Co. LImIted (supra) and LIberty SmeltIng Works (cIted wIthIn the Puretex KmttIng case as Liberty SmeltIng Works (1962) LImIted and UAW. Local 1470 (1972) 3 SAG 1035) However each of those cases were Interest arbItratIOn cases and In neIther of them was the company restraIned completely from InstallIng or maIntaInIng surveIllance cameras Rather as I understand the decIsIOns, the arbItrators allowed some cameras and dIsallowed others dependIng on whether or not there was a reasonable basIs for the surveIllance In the Puretex case where some of the cameras were allowed for the preventIOn of theft the arbItrator Imposed a condItIOn that "the use of the cameras It-as to be strictly limited to the prevention of theft" Presumably 13 that IS the proposItIOn upon whIch the Umon relIes In thIS case However even wIth that restnctIOn, If there was an employee captured on camera engaged In an act of theft, It IS doubtful that the eVIdence would be excluded or demed admIssIbIlIty sImply because It was now beIng used for dIscIplInary purposes Be that as It may WIth respect to the LIberty SmeltIng case, there are no such restnctIOns or lImItatIOns on the use of surveIllance cameras In the collectIve agreement before me Furthermore, thIS IS not an Interest arbItratIOn and the case must be decIded wIthIn the context of the collectIve agreement at hand. In the cIrcumstances, there IS no basIs for me to Introduce a restnctIOn on the use of the surveIllance eVIdence when there IS no sIgmficant challenge by the Umon to the ongOIng surveIllance and vIdeotapIng In the store As IndIcated earlIer that the Gnevor's actIvItIes dunng an exchange wIth a customer or customers were captured on vIdeotape could not constItute a surpnse to hIm here AccordIngly I do not accept eIther of the Puretex or LIberty SmeltIng cases as authonty to JustIfy refusIng the admIssIOn of eVIdence whIch IS relevant and germane to the Issues before me In addItIOn to the Interest arbItratIOn cases referred to the Umon In reply referred to a nghts arbItratIOn award In BntIsh Columbia. In Re Pope & Talbot Ltd. and Pulp, Paper and Woodworkers of Canada, Local 8 (2003) 123 LAC 4th 115 (D.R. Munroe) the Umon gneved the InstallatIOn of a camera momtonng the posItIOn of "Barge Unloader" as an Infnngement of the worker's pnvacy nghts Although that case was decIded under the then recently proclaimed Personal InformatIOn ProtectIOn Act, the arbItrator dId not regard the Act as altenng the Issue In the case before hIm At page 125 of the award ArbItrator Munroe comments as follows "One begins with a clear appreciation that as between emplover and emplovee the latter's reasonable expectations ofprivan are not set aside simph b, the entering into of the emplovment relationship amI further that while the Canadian Charter of Rights and Freedoms is not per se applicahle to private sector disputes like this one, the values emhedded in the Charter do appropriateh influence the development of our common law and arhitral jurisprudence But just as emplovee's privan interests require protection against the overzealous exercise of management rights, so also must an arbitrator aclo1Owledge the emplover's legitimate business and propern interests. What is required, then, is a contextual and reasonable balancing of 14 interests. There is no ahsolute rule affording precedence to one legitimate interest over the other It is a question of whether the particular camera surveillance in the purported exercise of a management right, is reasonable in the circumstances. " And later (at the bottom of page 25 and the top of page 126) he went no to note that "The union's institutional concerns about the camera sunJeillance and the emplovee's personal subjective concerns, cannot per se override the emplover's competing and legitimate business interests. But neither can those concerns be regarded as de minimis. Constant camera surveillance of an emplovee's productivin whether that is the prim an purpose or just incidental would obvioush be preoccupving and ma, understandabh be regarded in some circumstances as a diminution of one's sense of personal dignin or privan Borrowing from L'nisource, the thresholdfor determining the reasonableness of non-surreptitious video sunJeillance is lower than with surreptitious video sunJeillance however a meaningfitl threshold does exist. " In that case ArbItrator Munroe dId not dIrect the removal of all cameras but dId dIrect the restnctIOn of the use of some of them so that employees were not under constant surveIllance at theIr work statIOns 24 hours per day AccordIngly the ArbItrator dId place some restnctIOns on the surveIllance cameras however he dId so only after first findIng that to some extent the surveIllance dId not have a reasonable basIs The ArbItrator therefore Imposed lImItatIOns such that the surveIllance would not unreasonably Intrude upon the employee's actIvItIes In my VIew that decIsIOn IS consIstent WIth others referred to In thIS award. In partIcular It IS not InCOnsIstent WIth the decIsIOn of ArbItrator ShIme whIch I have revIewed extensIvely earlIer In thIS award. Rather It IS consIstent WIth the proposItIOn that even where employees have a reasonable expectatIOn of pnvacy those pnvacy nghts may be superseded on balance where there IS a reasonable basIs for surveIllance It does not, however support the proposItIOn advanced by the Umon to the effect that any eVIdence garnered by such surveIllance where the surveIllance was ImtIated for some other purpose, may not be Introduced Into eVIdence to support dIscIplIne In an arbItratIOn heanng. In all the cIrcumstances, sInce, upon a balancIng of Interests, the vIdeo surveIllance was a reasonable IntrusIOn upon the pnvacy nghts of the Gnevor here, and, SInce the tapes offered are 15 relevant to the Issues at hand, the Umon's motIOn IS not successful AccordIngly the tapes, subject to appropnate IdentIficatIOn, wIll be admItted Into eVIdence In these proceedIngs DATED at Toronto thIS 11th day of February 2005