I Know What You Did… Over Your Lunch Break
Miscellaneous Employees, Teamsters Local Union No 987 of Alberta v Sobeys Capital Incorporated (Rocky View), 2023 CanLII 4464 (AB GAA) (A Robertson), is a recent Alberta labour arbitration decision involving a grievance filed by Sobeys Rocky View employees in relation to surveillance cameras installed in the lunchroom, where approximately 300 employees often took their breaks. The Union argued that employee’s expectation of privacy outweighed Sobeys justification for cameras in the lunchroom.
The following are the pertinent facts of the grievance:
- In early 2018, Sobeys decided to install cameras in the lunchroom (in addition to the over 200 surveillance cameras already in place across the facility), in response to the Facility Leads concerns of theft and misconduct taking place there
- The grievance dealt with 2 of the 3 cameras installed in the lunchroom. The two cameras were at opposite ends of the room, focused on many of the tables frequented by employees, some of the shelves where personal belongings could be left and vending machines
- The surveillance cameras in the facility were not hidden from Sobeys employees, rather, the cameras were in plain sight, and there was signage upon immediate entry into the facility letting employees know that property was under surveillance 24/7
- Employees were also made aware of the cameras during orientation and through Sobeys’ policies and procedures
- In particular, Sobeys had a policy titled “CCTV Acceptable Use Policy” (the “Policy”). The Policy addressed the usage of the cameras and its recordings in the workplace
- The Policy outlined the objectives, scope and acceptable use of the surveillance cameras
- The acceptable use of the cameras and its recordings, according to the Policy, were as follows:
- To serve as a deterrence method in order to protect the company assets from theft, damage, disruption, vandalism or any other crime
- For the personal safety of staff, customers, visitors and other members of the public
- To assist law enforcement
- To prepare incidents pertaining to Loss Prevention, OH&S or Risk Management;
- To aid in the effective resolution of disputes which may arise in the course of disciplinary or grievance proceedings
- To assist in the defence of any civil litigation
- The Policy prohibited the use of the cameras for several purposes, including the following:
- To monitor employee’s productivity;
- Personal motives; and
- Release of recordings to external parties
- Only authorized employees had access to the recordings produced from the surveillance cameras
- Authorized employees were only able to access the recordings under limited circumstances, otherwise, the recordings were not to be reviewed and would automatically be deleted after 5 or 6 months
- Despite employees being aware that they were under surveillance, there was uncertainty as to who could access to the recordings
- The Union argued that cameras in the lunchroom were not justifiable, and less intrusive means could be used to monitor employee’s behavior in the lunchroom, such as managers oversight and the fact that there would inevitably be witnesses should an incident occur, given how often the room was used by employees
- Sobeys argued that the cameras were required and that the Union was time-barred from filing a grievance as the cameras were installed more than 2 years prior the grievance being filed
Analysis / Conclusion
The Arbitrator, Andrew R. Robertson, K.C., denied the grievance to remove the cameras from the lunch room. While also noting that the Grievance was not time-barred.
The Arbitrator noted that the test to be applied in such situations as the present, is the “test of reasonableness in all of the circumstances”, which required “a contextual and reasonable balancing of interests”.
The Arbitrator listed multiple important factors that impacted the decision, some of which are as follows:
- Cameras were not only obvious to employees, but Sobeys also drew their attention to them during orientation and signage upon immediate entry into the workplace
- An employer’s commitment to maintain a safe work environment applied to its lunch room
- Despite there being no specific incident of theft, and only one incident of physical confrontation amongst employees in the lunchroom subject to the Grievance, the fact that Sobeys had a history of conflict in other lunchroom facilities demonstrated the importance video recordings played in the investigation of workplace incidents
- Arbitral caselaw has demonstrated that employers are to deal with objectively known risks before an incident occurs. In other words, employers are not required to wait for something bad to happen before installing surveillance cameras. Employers are to be proactive rather than reactive
- The Policy was clear as to the proper and improper use of the cameras and the consequences for misuse
- The video recordings were not constantly monitored, and Sobeys could only review them following an incident
- It was not easy to obtain access to the recordings and they were not available remotely; instead, they were accessible on a hard drive which was locked in a room
- When recordings were reviewed, only limited members of management were privy to them
- Recordings were not kept indefinitely, but were automatically deleted after five or six months
- Occasional monitoring of the lunchroom by management was far less effective in addressing incidents such as physical conflict
Although the grievance was denied, it became apparent during the course of the arbitration that the employees were uncertain as to when the recordings would be reviewed, who had access and for how long, which was concerning to the Arbitrator. As a result, the Arbitrator ordered Sobeys to take particular steps to ensure that employees were aware of the surveillance cameras in the lunchroom and to educate them further on the Policy.
It is not an easy task to balance the privacy of individuals against an employer’s proactive measures and attempts to provide a safe workplace. It is important for employers to make its employees aware of the cameras and the policies surrounding their use, but even that is not always enough to justify surveillance of employees. I think if Sobeys could not have shown there were already problems in the lunchroom it would have been considerably harder to justify the surveillance.
Please note that the version of the case we linked to on CanLii is missing a bunch of paragraphs in the middle. We have a full copy of the case though, so if you require it please contact me and I will provide it to you.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Amanda Jacinto is an employment and labour lawyer at Bow River Law in Calgary.
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