Union argues hidden camera footage of employees caught having sex was invasion of privacy
Vernon, B.C., fire Chief David Lind installed a hidden camera to catch employees rifling through his drawers.
He didn’t expect to see them going through each other’s.
Now, eight months after being fired for having sexual relations on duty in the chief’s office, a firefighter and fire services employee are fighting to get back their jobs — not to mention their dignity.
In a ruling last month, an arbitration panel found that the City of Vernon could use video footage of the pair having sex as part of the evidence it relies on to justify their dismissal.
It’s a case that pits an employee’s right to privacy against the specific types of circumstances in which an employer can use surveillance cameras to spy on workers.
“The union does not deny the two employees engaged in the activity recorded in the footage, which the union characterizes as ‘a deeply personal and compromising interaction,'” arbitration chair James Dorsey wrote in his decision.
“The agreed question is whether relevant video footage is to be excluded from the evidence because of the manner in which it was obtained and disclosed by the employer.”
‘His heart skipped a beat’
The arbitration decision paints a picture of a workplace already on edge when Lind was hired in 2016.
A report the year before identified problems in communication and training. And the city retained a retired police chief in 2016 to investigate allegations of “bullying, intimidation and harassment.”
Lind told the arbitration hearing that two union officials told him a story at a Christmas party about how they had distracted a government official in order to remove a document from a meeting.
It’s a conversation the union officials insisted never happened.
Regardless, it all allegedly fed into Lind’s thinking when he found his office filing cabinet unlocked in the spring of 2017.
“He testified his heart skipped a beat because this had never happened before,” Dorsey writes.
When it happened again in September 2017, Lind and his deputy chief “decided to install surreptitious camera surveillance to catch the person.”
To spy or not to spy?
Decades of labour battles have established guidelines for the installation of spy cameras in the workplace.
They include a three-month strike in Toronto in the 1970s, resulting in a decision denying an employer the right to use cameras in plant production areas to discourage the theft of merchandise.
In B.C. in 1996, a hospital electrician stumbled across a power cable connected to a video camera recording employees in a housekeeping manager’s office.
And in 2000, an employer challenged an employee’s right to surreptitiously tape their fellow workers.
As it stands, employers must demonstrate that a substantial problem exists with a need for surveillance. They also have to show they’ve exhausted all alternatives and that no less intrusive method will work.
‘Intimate physical activity’
The names of the two fire services employees whose passion sparked the fire hall furor were withheld from the decision.
“In hindsight, it is clear neither dismissed employee knew about the surveillance,” the decision says.
Lind never saw anyone trying to open his cabinet. But on March 26, he took a look at the tape from the day before — a Sunday.
“He reviewed the video footage and saw the two employees engaged in intimate physical activity,” the decision says.
“The time stamp was 9:25 a.m. The office door was open. No one else was visible.”
The pair were fired the next day.
Did all those people need to watch?
Arbitration panel member Lorne West wrote a dissenting opinion noting that one of the lovers was the last remaining member of a leadership team eliminated with the arrival of a new city administration.
“The employee that is clearly the focus of the employer in this matter is a strong leader within the fire department and the last of the leadership to be removed and replaced,” West wrote in a dissenting opinion.
“Is it coincidental?”
West also questioned the number of people who viewed or were told about the video.
Did the deputy chief, the human resources director, the manager of human resources, the manager of information services, the chief administrative officer and legal counsel really need to watch?
“In my view, the employer has demonstrated at least at minimum, a disregard for the basic respect all employees deserve, regardless of circumstances,” West wrote.
“It appears at worst, there was a concerted effort at character assassination of one individual, who coincidentally, was the last remaining person seen as part of the fire department leadership.”
The grievance process is still ongoing.
Originally posted on cbc.ca on November 30, 2018 by Jason Proctor.