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Justifying Covert Surveillance


by Vicki Giles

A recent decision from the Office of the Information and Privacy Commissioner may cause some employer concern. Arbitration jurisprudence has generally upheld the right of an employer to conduct covert surveillance on employees who they have reason to suspect may not be legitimately absent from work. This Privacy Commissioner's decision looks at this issue and sets a higher than expected standard.

In the case, the employer argued it had sufficient evidence that the complainant was misrepresenting the state of his health. Its evidence was very typical and consisted of the following:

  • the complainant went on sick leave immediately following a discussion about concerns with his work performance and the legitimacy of certain expense claims;
  • the employer was not made aware of the nature of the complainant's illness;
  • the complainant was in a common law relationship with a previous employee who had also taken stress leave when she learned of an impending termination; and
  • the complainant was hostile toward the employer and the director.

To justify covert surveillance under PIPA, an employer must show that there is a "legitimate issue" to be addressed. To be successful in showing a legitimate issue, the adjudicator decided that an employer must provide "substantial evidence to support the suspicion that the relationship of trust had been broken". The adjudicator found that none of the above mentioned things justified the covert surveillance being undertaken. In reaching this conclusion, the adjudicator focused on the fact that the complainant had provided medical evidence (which consisted of two very brief doctors' notes stating the complainant "required time off work due to illness") and that the employer could give no explanation as to why these notes could not be accepted as accurately representing the fact that the complainant was sick. This test seems unduly strict and impractical to us.

The remedy that was provided involved an order to stop collecting the information and a directive to communicate the requirements of PIPA to the company's officers and employees. No damages were awarded. In future cases, the precedent may prevent using evidence gathered in similar circumstances from being used in arbitrations or court cases. Therefore, the decision, if followed, could have a major impact. Employers must have a fairly solid basis for doubting the legitimacy of an absence before engaging in any covert surveillance.

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