Canadian Labour Reporter

October 18, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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and would be in violation of the Privacy Act." Pioneer agreed and noted that its "Asset Protection Policy – Video Recordings" stated that "cameras will not be used to capture images for the purpose of measuring employee job perfor- mance." However, three cashiers claimed that at their performance reviews in December 2019, the grocery department manager showed them photos of cashiers taken from surveillance footage. They felt uncomfortable about it and also felt that they were always on camera, as the CCTV cameras were pointed towards them while they worked. Sometimes the man- ager called their tills on the house phone to criticize their behav- iour in real time — although the manager claimed he always made such calls from the floor where he could see the tills, not from the of- fice. On another occasion, an em- ployee reported that the CCTV monitor screen was being left on and could be viewed by anyone who entered the grocery office. The manager decided to turn it off in early 2020, because "it would be easier if it was off." On Feb. 25, 2020, a customer contacted the store about not hav- ing received a carton of eggs that he had paid for. The manager re- viewed the CCTV footage of the till used for the transaction to see if the eggs had been bagged for the customer. At one point, the foot- age showed three cashiers clus- tered together having a conver- sation. The manager felt that this constituted workplace socializing that he had instructed employees not to do while working. He paused the video and took a picture of the scene with his cell- phone, figuring that he could use it for coaching purposes. Over the next couple of days, he brought the image up on his computer monitor to discuss with each of the cashiers. The union filed a grievance al- leging a violation of employees' "right to privacy in a number of ways including, but not limited to, taking photos without their knowledge and consent." Pioneer indicated that it instructed the manager that "his actions were not an appropriate use of the vid- eo surveillance and not in accor- dance with the Pioneer Co-op's policies." The arbitrator noted that several employees felt like they were being monitored and the evidence was that Pioneer's asset protection policy had not been disseminated to employees. As a result, "the unexplained presence of a handful of CCTV cameras staring down at them" created the sense for employees that they were being observed and evalu- ated. The arbitrator found that, re- gardless of the manager's expla- nations for criticizing employ- ees as they worked in real time, the CCTV cameras were being used in part to monitor employee performance, contrary to both Pioneer's policy and the employ- ees' privacy rights. This was con- firmed when the manager took a photo of a frame of footage from the cameras and used it directly to coach cashiers about socializing while on the job. This was direct evidence that that CCTV footage was used to supervise and evalu- ate job performance in violation of the Privacy Act and the company's own policy, the arbitrator said in declaring that Pioneer engaged in a continuous violation of cashier's privacy rights. Pioneer was ordered to promi- nently post on its bulletin board a statement that its CCTV sys- tem respected employee privacy rights by prohibiting the use of cameras to capture images for the purpose of measuring job perfor- mance. Reference: Pioneer Co-operative Assn. and RWDSU, Local 950. Ken Norman — arbitrator. April 13, 2021. 148 C.L.A.S. 125 and to the first client of the day. In addition, they were paid for time spent travelling between clients at the rate of 1.5 minutes at the straight-time rate for every two kilometres driven. During collective bargaining in September 2017 to renew the collective agreement, VON pro- posed deleting the travel time pay provision. The union rejected the proposal. In November, VON introduced new software that tracked the time employees spent at client homes and driving. VON discov- ered that employees occasionally spent less time with a client than the scheduled time for which they were being paid. When an em- ployee finished an appointment early and was paid to drive to the next client while still on the clock for the previous one, they were being paid twice for the same time. In January 2018, VON in- formed the union that it would be introducing a new system of wage calculation in which it would "pay employees for actual direct time with clients." Travel time would be paid in full if it occurred out- side the scheduled appointment time, but if the client visit was shorter than scheduled, the travel time afterwards would be deduct- ed from the scheduled visit time to avoid the double payment. VON implemented the change on May 1, 2018. The union filed a grievance, arguing that the travel time payment was a separate en- titlement under the collective agreement that was distinct from earnings for work. Although there was no guarantee of hours, the agreement referred to "sched- uled hours" and VON couldn't make a distinction between ac- tual hours worked and scheduled hours, it said. VON claimed that the double payment for travel time after shorter-than-scheduled client visits was pyramiding, which the collective agreement didn't allow. It added that the intention was to pay employees for the actual time of their visits along with their travel time. The arbitrator agreed with the union that the collective agree- ment stipulated that employees were paid for scheduled visits. This reflected the arrangement with the LHIN, which reimbursed VON for scheduled visits to cli- ents' homes, not the time em- ployees spent there, the arbitrator added. "There is no distinction in the collective agreement between the scheduled visit and the actual visit," said the arbitrator. "The ob- ligation of the employer towards the HSWs and PSWs is to pay them for the full period of their scheduled visit." The arbitrator also agreed that the travel time payment was a dif- ferent entitlement under the col- lective agreement. The arbitrator noted that the new software allowed VON to determine any differences be- tween client visits and their actual needs, and this could be used to recommend changes of the as- signed times to the LHIN. How- ever, VON wasn't permitted to "unilaterally alter its obligation to pay for an employee's scheduled visit by changing its obligation to pay only for the employee's actual visit." The arbitrator determined that VON breached the collec- tive agreement and that employ- ees who had travel time payments deducted were entitled to reim- bursement. Reference: Victorian Order of Nurses for Canada and SEIU, Local 1 Canada. Daniel McDonald for employer. Robert Church for employee. July 6, 2021. 2021 CarswellOnt 10597 Health-care employer tried to avoid double payments for PSWs Store manager's use of surveillance inappropriate: arbitrator < Double pg. 1 < Big Brother pg. 1 October 18, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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