Labatt Brewing Company Limited and Interior Brewery Workers’ Union, Local 307 (July 22, 2009) (McPhillips)
This preliminary award sets an important precedent for unions faced with employers who have a penchant for video surveillance when a member goes on medical leave.
In 2007, Labatt’s decided to hire a private investigator to follow around and record the actions of the grievor only one day after the grievor was injured at work. It then obtained a video tape and a report from the investigator and subsequently suspended the grievor for abuse of sick leave policy.
The IBWU took the position that this violated the grievor’s right to privacy and was not reasonable in the circumstances, and there were other alternatives to consider before taking such a drastic measure.
The Union further argued that it was blatantly contrary to the purpose of privacy legislation (and the Charter, which has recognized the privacy interest of individuals, as noted in the Doman Forest Products Ltd. and I.W.A., Local 1-357, [1990] 13 L.A.C. (4th) 275 (Vickers) case) to allow an employer to benefit in a labour arbitration by violating privacy legislation.
Arbitrator McPhillips determined that the Employer’s decision to undertake covert surveillance was, at the least, premature in the circumstances. He noted that it was the very first option considered and there was significant uncertainty about a number of issues that the Employer had failed to sort out before undertaking actions that resulted in an invasion of privacy.
As a result, the Arbitrator agreed with the Union that all of the evidence (the video tape, the private investigator’s report or any viva voce testimony from the private investigator) was inadmissible in the arbitration.