Canadian Employment Law Today

September 25, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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with Tim Mitchell Ask an Expert MCLENNAN ROSS LLP, CALGARY 2 | September 25, 2019 Have a question for our experts? Email Canadian HR Reporter, 2019 Answer: Employers do not have a unilateral right to conduct surveillance, and the instal- lation of security cameras is not a simple mat- ter of informing employees of the change. e law of privacy continues to emerge, with varying schemes across the Canadian prov- inces. e overarching approach to privacy rights is one of proportionality. e employ- er has the onus of demonstrating that the business interest outweighs the employee's privacy interest, as an arbitrator found in Canada Safeway Ltd. v. U.F.C.W., Local 401. Federally regulated private sector employ- ers, such as banks and airlines, are governed by the Personal Information Protection and Electronic Documents Act (PIPEDA). Al- berta's provincially regulated private sector employers, which make up the majority and include construction and real estate, are reg- ulated by the Personal Information Protec- tion Act (PIPA). Both statutes provide limits on the collection, use, and retention of per- sonal information, including exemptions. Government institutions have separate leg- islative schemes. Courts, privacy commissions, and arbi- trators have considered similar analyses re- garding employer surveillance. Specifically, the surveillance must be conducted reason- ably, and for a reasonable business purpose. e privacy rights of the employee must be balanced with the business interests of the employer, provided that such interests are real and meaningful. Because most, if not all, businesses have concerns about security and safety in the workplace, an employer must provide objective evidence of specific cir- cumstances justifying surveillance: Calgary Herald v. GCIU Local 34-M and Re: Wood- stock (City) and Woodstock Professional Fire- fighters' Association (Video Surveillance). erefore, the permissibility of surveil- lance installation is not resolved by inform- ing employees of the cameras. e analysis will consider the business purpose, includ- ing the applicability of safety and security concerns, the probability that surveillance will assist with the concerns, and the num- ber of and characteristics of the cameras. Absent a situation where the employer is conducting a serious investigation, as con- templated in PIPA, it is difficult to justify covert surveillance as a reasonable busi- ness objective. Even an investigation may not be suffi- cient grounds for intrusion on an employ- ee's privacy rights. For example, in Colwell v. Cornerstone Properties Inc., the installation of a covert security camera in the office of a trusted manager, followed by an implau- sible explanation, was not a reasonable act of employer surveillance. Specifically, the surveillance irreparably damaged the trust between employee and employer and was not the least intrusive method of accom- plishing the employer's desired investiga- tive objective, which was cleaning staff. Not only had the employer improperly intruded on the privacy of a trusted employee, but the intrusion and associated conduct were so egregious that they resulted in the con- structive dismissal of the employee. Not only had the employer infringed the privacy rights of its employees, it was also liable for wrongful dismissal damages. It's recommended that all private sector employers review the Privacy Commis- sioner of Alberta's "Guidelines for Overt Video Surveillance in the Private Sector." Looking ahead, the trend in privacy law is toward protection of personal privacy. erefore, employers should exercise cau- Security cameras in the workplace Question: Does an employer have to officially notify employees about security cameras in the office if they're obvious and in common areas? What about if cameras are added to specific areas where there are only a few people? Harassment of supervisor by subordinate Question: If a subordinate employee harasses or bullies a supervisor, are there any ways the matter should be handled differently than the reverse situation? Answer: Harassment and bullying are ac- tionable forms of workplace misconduct. e essential employer duties for handling harassment and bullying are analogous re- gardless of who engages in the misconduct. However, employers should be aware of dis- tinctions created by differing context of bul- lying or harassment by subordinates. Wrongful conduct by a supervisor, includ- ing harassment or bullying, is exacerbated by their position of authority: see Canada Safeway Ltd. v. U.F.C.W., Local 401. When a supervisor is harassed or bullied by an employee under her purview, the em- ployer must assess the complaint in light of the broader context, including: previous or ongoing issues between the complainant and the alleged harasser; the possible job performance implications of a supervisor who is harassed by a subordinate; and the potential that the alleged harasser has ha- rassed other peers or subordinates. In Alberta, for example, harassment may be prohibited by the employer's policy, the Human Rights Act or the Occupational Health and Safety Act. In particular, the Oc- cupational Health and Safety Act outlines the relative duties of employers, supervisors and employees in the harassment context: • Employers are obligated to ensure that none of the employer's workers are sub- jected to or participate in harassment. • Supervisors are obligated to ensure that none of the workers under their super- vision are subjected to or participate in harassment. • Workers must refrain from causing or par- ticipating in harassment. e individual who receives the report of harassment or bullying and the manager of the victim of the wrongful conduct are in positions of authority regarding the inves- tigation and resolution. Employers must be aware of potential liability for inaction fol- lowing reports of harassment and bullying. Employers must implement internal poli- cies, investigate harassment complaints and ensure that the complainant does not experi- ence adverse impacts from reporting the in- cident. Adverse impacts — which may range from additional harassment to wilful blind- ness or a poisoned work environment — are characterized as reprisal for enforcing a right. Reprisal is inconsistent with the purpose and protections of the Occupational Health and Safety Act: see Ljuboja v. Aim Group Inc. e failure to investigate and address ha- rassment concerns may be serious enough to justify damages for constructive dismissal or even Wallace damages for pain and suffering in egregious cases: see Boucher v. Wal-Mart Canada Corp. When the accused harasser is a subordi- nate of the complainant, the employer must be alive to the potential relationship intrica- cies when conducting its investigation and resolving the issues. For more information see: • Canada Safeway Ltd. v. U.F.C.W., Local 401, [2008] A.G.A.A. No. 38 (Alta. Arb.). • Ljuboja v. Aim Group Inc., 2013 CanLII 76529 (Ont. Lab. Rel. Bd.). • Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (Ont. C.A.). TREND on page 7 »

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