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Author:
Kelsey Orth

Date:
2019.05.02

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THE EMPLOYERS' EDGE

NOT EVERYONE WANTS THE LATEST TECHNOLOGY IN THEIR VEHICLE? TOO BAD, SAYS ARBITRATOR IN JUSTIFYING IN-CAB EMPLOYEE MONITORING SYSTEM

Practice Areas: PrivacyHuman Rights

Today’s workplace has an interesting dynamic when it comes to technology and employees: while employees generally want access to all the technology they can handle, they definitely do not want that technology to be used against them.  Couple that with the inflated sense of entitlement to personal privacy many employees seem to have, and it becomes difficult for employers to make use of some of the means at their disposal that might otherwise help them run their businesses more efficiently, and/or save money.  However, in a recent decision, at least one arbitrator has determined that not only does the usual test for intrusive employee-monitoring measures still apply, but that it can be used successfully by employers with a genuine business interest.

In Teamsters Local Union No. 230 v. Innocon Inc. (Toronto Ready Mix Concrete), the union grieved discipline against an employee who had been caught on video.  However, the grievance raised a preliminary issue, namely that the employer’s installation of vehicle monitoring system with in-cab cameras in its fleet of concrete delivery trucks was an unreasonable intrusion on the privacy of employees.  The employer countered by saying that the “DriveCam” system it had installed was intended to directly address safety concerns raised by the Ministry of Transportation through its Commercial Vehicle Operator’s Registration system; the employer’s rating was being adversely affected by various incidents, mainly collisions.  The employer argued that the employees' privacy interest in this case was at the low end as the cabs were not their private space, but a workplace that was public in the sense that duties were carried out in a public space in vehicles with windows and doors.

Arbitrator Laura Trachuk stated that the issue before her was "whether the impact on the drivers' privacy interests outweighs the benefit the in-cab camera provides in reducing the collision and CVOR rating, taking into account other options the Employer may have."

In determining that the in-cab cameras installed by the employer were justified and appropriate in the circumstances, Arbitrator Trachuk found that, although the drivers did have a privacy interest that was impacted by the DriveCam system, that impact was limited because “only a small amount of footage is even viewed after the event with the Drive Cam system and of that, an even smaller percentage is provided to the Employer.”  This was balanced against the fact that the issue the employer sought to resolve was a “serious one”, in terms of both safety of the employee and the status and health of the company itself, since its safety rating with the Ministry of Transportation threatened the company (and along with the very jobs of the union members).  As a result, she dismissed the preliminary argument.

While this case is not the only one to find video surveillance acceptable or justified, it is one of the more recent ones[1] to explicitly recognize that a threat to the employer’s ongoing viability is a significant factor in determining the balance between the employer’s and the employee’s interests.  

If you are dealing with issues of safety or security in your facility or workplace, or if you have questions about the balance between your rights and interests as an employer and the privacy of your employees, the team at CCPartners is here to help.



[1] See the 2018 Quebec decision of Arbitrator Andre Sylvestre in Unifor, section locale 145 c. Aliments Prémont inc.


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