The Ontario Labour Relations Board has thrown out video evidence of two elevator installers smoking pot on their lunch hour because it violates their rights to privacy.
TORONTO
The Ontario Labour Relations Board has thrown out video evidence of two elevator installers smoking pot on their lunch hour because it violates their rights to privacy.
However, it says it will consider evidence from their supervisor that he saw them smoking up when it considers the case next.
The grievance was brought by Mike Chevalier and Blaine Thurston, members of International Union of Elevator Constructors, Local 50, who were employed by Thyssen-Krupp Elevator (Canada) Ltd.
The pair were fired after their boss, Wayne Wagner, complained to his construction manager, Matthew MacArthur, they “had been behaving oddly during the course of the job.”
Wagner said they took lunch in Thurston’s truck rather than in the lunch trailer on site, and they appeared lax in safety procedures.
MacArthur said he saw Chevalier on one occasion on an elevator without a safety harness, without safety glasses and with his safety hard hat on backwards and when challenged, Chevalier was nonplussed and seemed to have a “dazed look.” However, he complied when challenged.
MacArthur decided to follow up the “odd” behaviour by putting the two under video surveillance in their pick-up truck, which was parked in a public lot near the job site.
On Nov. 8, 2005, Wagner borrowed a van with tinted windows and parked near the truck, and he and MacArthur set up inside.
At lunch that day, MacArthur says he saw the men smoke marijuana and filmed them doing so.
Arguing the case for the union, business representative Bernard McIntyre said in his 20 years in the trade, it is not unusual for employees not to wear their safety harness or safety glasses while on an elevator.
He said in some circumstances, it might be dangerous to wear a harness on an elevator and it is common, especially among ironworkers and other young workers, to wear their hard hats backwards.
OLRB vice chair Norm Jesin agreed, saying the reasons for surveillance were not compelling and there was nothing “very odd” about their behaviour.
Nor should the managers have taken issue with where the men took their lunch, said Jesin.
“A ‘feeling’ on the part of management that something is not right should not provide a license to conduct surreptitious surveillance of employees while they are off duty and away from the work site,” Jesin wrote.
“An employer may certainly observe an employee at work and may pay particular attention to whether that employee is performing his job properly and safely. If the employer observes a real problem in job performance, the employer may respond appropriately. However, off duty surveillance of an employee should not be conducted without clear and reasonable grounds.”
He also said while the men were in a public parking lot when their actions were recorded, they were in a vehicle and they had a reasonable expectation of privacy, certainly more than if they had been standing out in the open.
As a result, ruled Jesin: “The surveillance was not reasonably conducted and was therefore conducted in violation of the collective agreement…therefore the video should be excluded at this time.”
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