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November 30, 2006 |
Issue No. 1 |
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EMPLOYER CAN RELY ON SURVEILLANCE EVIDENCE OBTAINED DURING WORKERS' COMPENSATION BOARD INVESTIGATION, ARBITRATOR RULES A British Columbia arbitrator has ruled that an employer can, in disciplinary proceedings, rely on videotaped surveillance evidence of employee fraud obtained by a workers' compensation tribunal. According to the arbitrator, the proper consideration is whether or not it was reasonable for the employer to simply rely on the surveillance evidence as opposed to engaging in alternative means of addressing the issue. Details below. See also section 6.8 in Leading Cases on Labour Arbitration. EMPLOYER'S PROMISE OF CONFIDENTIALITY TO WITNESSES DOES NOT SHIELD THEIR STATEMENTS FROM DISCLOSURE IN ARBITRATION PROCEEDINGS, BOARD DECIDES An Ontario arbitration board has held that an employer policy promising confidentiality to witnesses who participate in investigations of workplace violence does not operate to protect witness statements, interview notes and an investigation report from disclosure at arbitration since disclosure of such documents was crucial to judicial fairness. However, recognizing the employer's legitimate interest in maintaining some confidentiality, the board imposed limits on the extent of disclosure while still enabling the grievor to fully know the case to be met. Details below. See also section 6.7 in Leading Cases on Labour Arbitration. |
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— DETAILED REPORTS — |
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EMPLOYER CAN RELY ON SURVEILLANCE EVIDENCE OBTAINED DURING WORKERS' COMPENSATION BOARD INVESTIGATION, ARBITRATOR RULES The Facts: The grievor was discharged from his employment with the Greater Vancouver Regional District for alleged fraud and inappropriate conduct in the making of a workers' compensation claim. The grievor had sustained an injury at work and made a claim to the Workers' Compensation Board. However, the WCB decided to investigate the grievor's claim because not all of the complaints reported by the grievor were supported by objective medical evidence. The WCB hired a private investigator to conduct 20 hours of surveillance. Upon examining the video surveillance of the grievor, the WCB determined that the grievor was capable of work and discontinued his benefits on the basis of misrepresentation and fraud. When the grievor filed an appeal, the employer decided to participate in the proceedings, and sought disclosure of the WCB file, which contained a copy of the video surveillance. A meeting was held between the grievor, the union and the employer during which the video surveillance was discussed. The grievor was subsequently discharged for fraud and inappropriate conduct. The union filed a grievance against the discharge. In the arbitration proceedings, the employer requested a preliminary order pursuant to s.95 (1.1)(c) of the British Columbia Workers' Compensation Act, which allows the contents of a WCB claim file to be disclosed to a person other than the worker if disclosure is ordered by a court, tribunal or arbitrator. The Arguments: The employer argued that issuing an order under s.95(1.1)(c) required the arbitrator to balance the individual's need for privacy against the employer's need for disclosure of information, and in this regard the employer asserted that disclosure of the videotape was necessary for the preparation of its case. As for the admissibility of the videotape as evidence, the employer submitted that the proper test was reasonableness, and that its reliance on the WCB evidence was not unreasonable since there was no other practical way of obtaining useful or probative evidence with respect to the grievor's conduct. Furthermore, it submitted, the test for reasonableness did not require the exhaustion of all possible alternatives. The union countered that under s.32 of British Columbia's Freedom of Information and Protection of Privacy Act information obtained under a statutory right of disclosure, pursuant to the Workers' Compensation Act, could not be used for a purpose other than that for which it was obtained. In this respect, it contended, the disclosure of the WCB file to the employer's Human Resources Department was not necessary for the administration of the Act and, therefore, the contents of the file could not be used in disciplinary proceedings. Moreover, the union maintained, the videotape was inadmissible as evidence, since there was no reasonable basis for the WCB to conduct the surveillance. As the employer "stepped into the shoes" of the WCB, it could not reasonably rely on the evidence. The Decision: An arbitration board chaired by Wayne Moore ordered disclosure to the employer of the WCB file for the preparation and presentation of its case at arbitration, and declared the video surveillance evidence admissible. Arbitrator Moore held that the proper approach under s.95(1.1)(c) was to balance the employee's right to privacy against the right of a party to a legal proceeding to fully present its case. He rejected the union's argument that privacy legislation prevented disclosure of the videotape, on the ground that the intended use of the information by the employer in disciplinary proceedings was consistent with the purposes for which the evidence was obtained. Moore stated: "It is well recognized in the arbitral jurisprudence that an employer has a valid and real interest in the adjudication of WCB claims and in particular in the legitimacy of those claims. In that context we view the use of the files as an element of proof in a disciplinary matter to be a 'logical outgrowth' of the initial use." Addressing the issue of admissibility of the surveillance evidence, Arbitrator Moore held that the employee's privacy interest must be balanced against the employer's legitimate concerns regarding employee misconduct. Arbitrator Moore held that the WCB's decision to conduct surveillance was reasonable in the circumstances as there was no evidence to suggest that the decision was inappropriate or conducted in a manner that would have rendered the evidence inadmissible in any proceedings with respect to the WCB claim. Since it was not the employer's decision to conduct video surveillance, the proper consideration was whether or not the employer's conduct was reasonable from the point in time when it became aware of the existence of the surveillance evidence. In the circumstances of the present case, Moore declared, "the focal point of the conduct to be considered is the reasonableness of simply relying on the surveillance evidence as opposed to [requiring] the employer to have engaged in alternative acts to address the issue before being allowed to rely on that evidence." In this regard, Moore found that no reasonable alternatives existed for the employer to address the issue of the employee's misconduct; therefore, the employer was entitled to rely upon the WCB's video surveillance in the arbitration proceedings. Comment: In determining the admissibility of the surveillance evidence, Arbitrator Moore relied on the seminal decision of Arbitrator Vickers in I.W.A., Local 1-357 v. Doman Forest Products Ltd. (1990), 13 L.A.C. (4th) 275. Vickers articulated a three-part test for the admissibility of videotaped evidence: (1) was it reasonable, in all the circumstances, to request surveillance?; (2) was the surveillance conducted in a reasonable manner?; and (3) were other alternatives open to the company to obtain the evidence it sought? The board rejected the employer's argument that Doman was no longer good law, holding that it remains the proper test in British Columbia. The board noted, however, that the circumstances of the present case were different from Doman. The Doman approach was "formulated in the circumstances of an employer deciding to conduct surveillance... In the case before us the employer had no role in and indeed no knowledge of the decision to conduct surveillance.... The decision was made on the basis of considerations unrelated to the employment relationship and within the context of a very different kind of relationship." The board held, however, that the underlying principles of Doman applied and the approach taken in that case was adapted accordingly. In this case, Arbitrator Moore determined that the WCB's decision to order surveillance was reasonable. What if it was not? Arbitrator McConchie dealt with such a situation in BCGEU v. PSERC, [1998] B.C.C.A.A.A. No. 699 (QL). In that case, the employer sought to rely on a recorded conversation between the grievor and her daughter surreptitiously recorded by the daughter's neighbour using a scanner. Although McConchie found that the evidence was obtained under "repugnant" circumstances, "unreasonable by any standard," he nonetheless declared it admissible, on the ground that the exclusion of the evidence would "bring the administration of justice into greater disrepute" than inclusion. If the approach in video surveillance cases is any indication, however, most arbitrators would disagree. However, in the case under review, Moore distinguished PSERC on the basis that the WCB's decision to order surveillance was reasonable, thereby avoiding the need to address the issue. For further discussion of videotaped surveillance evidence, see section 6.8 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: Greater Vancouver Regional District Employees Union v. Greater Vancouver Regional District |
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EMPLOYER'S PROMISE OF CONFIDENTIALITY TO WITNESSES DOES NOT SHIELD THEIR STATEMENTS FROM DISCLOSURE IN ARBITRATION PROCEEDINGS, BOARD DECIDES The Facts: The grievor, a seasonal employee working for the City of Windsor in its ice arenas, was given a two-week suspension for allegedly making threatening statements after learning he had been an unsuccessful candidate for a job posting. In accordance with its recently adopted Workplace Violence Prevention Policy ("WVP policy"), the City conducted an investigation into the alleged threats which involved interviewing several employees. Based on a report by the investigators, the City decided to suspend the grievor. The Canadian Union of Public Employees grieved the suspension, and requested that the City produce, among other items, the interview notes, witness statements and report generated in the course of the investigation. The City refused production on the grounds that the WVP policy promised confidentiality to those who participated in the investigation. Specifically, the WVP provided that "[a]ll reports of violence shall be handled in a confidential manner, with information released only on a 'need to know' basis," and added the following: "The City of Windsor treats all information received as confidential information. Investigative results will not be disclosed or discussed with anyone other than those who have a legitimate right to know. All employees submitting information have the right to have their privacy and confidentiality protected by the Corporation in accordance with the Municipal Freedom of Information and the Protection of Privacy Act. Employees submitting information in good faith are also provided protection under the City's Concerned Employee Policy." At the commencement of the arbitration, CUPE asked the arbitration board to rule on the issue of production of documents. The Arguments: CUPE argued that, while the City had a right to maintain confidence in situations where it decided not to take action against an employee, once an action had been taken general principles of judicial fairness and natural justice required disclosure. Referring to the "Wigmore criteria" governing the production of confidential documents, CUPE submitted that the promise of confidentiality given to the witnesses was too vague to create an expectation that the information would not be disclosed at arbitration, and that the City had failed to prove the need to keep the information in confidence. According to CUPE, balancing the relationship that would be injured by disclosure against the grievor's right to fairness and justice favoured disclosure. The Wigmore criteria provide that, in order for a communication to be protected by privilege, it must be shown that (1) it originated in a confidence that it would not be disclosed; (2) the element of confidentiality is essential to the full maintenance of the relationship between the parties; (3) the relationship is one that, in the opinion of the community, ought to be fostered; and (4) the injury that would occur to the relationship by disclosure of the communication would be greater than the benefit that disclosure would give to the truth-seeking function of the litigation process. The City countered that the WVP policy would not function effectively without a guarantee of confidence. Moreover, the City pointed out, it was required under the Ontario Occupational Health and Safety Act to take reasonable precautions to protect its employees from workplace violence. In short, the City asserted, the balancing of interests involved in the Wigmore approach tipped in favour of non-disclosure. The Decision: Writing for a unanimous board, Arbitrator Brian Etherington granted an order directing pre-hearing production of the documents in question. He found the requested documents not only arguably or potentially relevant, but declared that "it is hard to imagine documents that could have greater 'potential' relevance in the normal case than the notes of interviews and summaries of interviews with possible witnesses to the alleged threatening statements that were considered by the employer in its decision to issue a disciplinary suspension." Turning to the Wigmore criteria, Etherington found that the City had failed to prove that the WVP policy contained the requisite guarantee of confidentiality, or that the guarantee was essential to the operation of the policy. Noting that allegations of workplace violence may lead not only to suspension, but also to discharge, he cautioned that the employer's position could mean that employees "would be unable to have access to the very documents that would be at the heart of the preparation that is necessary to have a fair opportunity to meet and challenge the allegations of misconduct that led to the significant penalties imposed... [W]e find it difficult to accept that a grievor accused of serious wrongdoing and subjected to serious disciplinary measures of suspension or discipline can be viewed as having the right to a fair hearing if he is denied the pre-hearing production of documents that reveal what witnesses have alleged about his conduct...." Arbitrator Etherington held that the right to pre-hearing production of documents "should only be overridden in the interests of confidentiality interests where there is a clear statutory basis for such an override or the common law Wigmore criteria are clearly met, and in particular where the fourth Wigmore criteria is met by demonstrable proof of an injury to the relationship that would result from production that clearly outweighs the harm to fairness interests that would result from non-disclosure." He also agreed with CUPE's submission that, since the WVP policy referred to releases of confidential information on a "need to know basis" and to disclosure to those with a "legitimate right to know", disclosure was not necessarily inconsistent with the confidentiality promise in the policy. Turning to the City's contention that disclosure, if ordered, should be limited to statements by those witnesses it planned to call, Etherington found this approach inconsistent with arbitral principles regarding pre-hearing production. He noted that, while an employer's decision not to call a particular witness may indicate that the witness has nothing to add, it could also be that the witness' testimony would prove harmful to the employer's case. In order to meet the City's concerns about the privacy of interviewees, while still allowing adequate disclosure, Etherington adopted an approach he had applied in S.E.I.U., Local 210 v. Central Park Lodges (Versa Care Windsor Place) (2001), 95 L.A.C. (4th) 192, a case in which the union sought disclosure of confidential patient records in a nursing home. In that case, union counsel was allowed an opportunity to view documents arising out of the investigation, and request copies of any that he considered relevant. Relevant documents could be disclosed by union counsel to the grievor and union advisors, but all other records were to remain with, or to be returned to, the employer. In Etherington's view, this was a reasonable means of balancing the competing interests involved in the grievance. Comment: In this case, where the claim to confidentiality stemmed from the witnesses' wish to protect their identity, in order to avoid violence or threats of violence, and from the employer's interest in ensuring that employees would come forward to report instances of harassment without the fear of reprisal or threats, the privilege asserted by the employer falls somewhere between what has been characterized as "labour relations privilege" and privilege based on a right to personal privacy in respect of an employee's personal information. Labour relations privilege has usually been asserted over internal documents that would affect labour relations between the union and management. Thus, in this case, the City asserted that maintaining confidentiality in its investigation was key to its ability to effectively manage the workplace. Claims for privilege based on personal privacy, on the other hand, have usually arisen in cases where the records in question are medical documents or other sensitive personal information, the disclosure of which could compromise the personal privacy and security interests of the individual subject to the disclosure requirement. In both cases, however, although the basis for the claim of privilege may be different, the approach taken by arbitrators is the same – in the view of most arbitrators, the claims of confidentiality must be balanced against a grievor's right to know the case he or she has to meet. In this regard, arbitrators have rejected claims of confidentiality pertaining to medical records of alleged victims of patient abuse, or written reports in harassment investigations, where they did not meet the strict criteria of "litigation privilege" or some other recognized form of privilege. See, for example, SEIU, Local 210 v. Central Park Lodges, Lancaster's Labour Arbitration News, January/February, 2002, where Arbitrator Brian Etherington held that litigation privilege did not attach to witness interviews conducted by the employer where the interviews were not done for the "dominant purpose of preparing for litigation," and see P.E.I. Union of Public Sector Employees v. Provincial Health Services Authority, Lancaster's Public Service & Crown Agency Employment Law News, January/February 2006, where Arbitrator Innis Christie ordered disclosure of the medical records of a psychiatric patient who alleged abuse by a care attendant, ruling that the accused employee's right to a fair hearing outweighed the patient's privacy rights and the protections against disclosure of the medical records in the province's Mental Health Act. For further discussion of privilege, see section 6.7 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: Canadian Union of Public Employees, Local 82 v. Windsor (City) |
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