Heard in Montreal, Thursday, 15 February 1996

concerning

and

Dismissal of Mr. S. Chahal.

On September 25, 1995, the grievor was dismissed for "deliberately misrepresenting yourself to the Company as being physically incapacitated and unable to perform your normal duties due to a work related back injury, and then personally engaging in physically demanding activities during a time frame in which you had put forth a claim to the Workers’ Compensation Board; a deliberate, calculated and willful attempt to mislead and defraud the Company, June and July of 1995, at Calgary, Alberta."

The Union contends that the dismissal of the grievor is excessive and unwarranted in the circumstances.

The Union requests that the grievor be reinstated forthwith without loss of seniority and with full compensation for all earnings lost, including expense unnecessarily incurred.

The Company denies the Union’s contentions and declines the Union’s request by arguing that the grievor misrepresented himself and his ability to work in an attempt to defraud the Company.

There appeared on behalf of the Company:

R. M. Andrews – Labour Relations Officer, Vancouver

D. T. Cooke – Manager, Labour Relations, Montreal

G. D. Wilson – Counsel, Montreal

D. M. Ciseski – Claims Agent, Calgary

K. C. Hood – Private Investigator, Calgary

And on behalf of the Brotherhood:

P. Davidson – Counsel, Ottawa

J. J. Kruk – System Federation General Chairman, Ottawa

D.W. Brown – Senior Counsel, Ottawa

R. Heinrichs – General Chairman, Prairie Region

G. Beauregard – General Chairman, Atlantic Region

This grievance involves a dispute concerning the admissibility of evidence acquired by the videotape surveillance of an employee in his off-duty activities. The grievor, Machine Operator S. Chahal, who is thirty-five years old and was employed by the Company since August of 1982, complained of a back injury which he maintains he sustained at work on June 20, 1995. That day was the first seasonal day back at work for the Pacific Steel Gang, and the grievor was assigned to install pandral clips with other labourers. He complained of a sore back at approximately 13:00, following which he rested in the crew bus and, thereafter, was put on light duties. When, the following day, he stated that his back was too sore to work, he was allowed to remain off work entirely.

The next day, June 22, 1995, he was taken to a medical clinic in Revelstoke, B.C., by Assistant Supervisor Dan Spalding. Mr. Spalding relates that during the course of that trip the grievor had substantial difficulty walking and getting into and out off the Company truck. The doctor at Revelstoke diagnosed the grievor as having a strained lower back and recommended light duties for a couple of days. The following day, June 23, 1995, Mr. Chahal advised his supervisor that the pain in his back was getting worse and, apparently on his own, obtained a ride to Golden, B.C., where he visited a different doctor who, it appears, advised against any light duties for a couple of days. The record further discloses that on Saturday, June 24, 1995, Assistant Supervisor Spalding looked out of the window of his own boarding car and saw the grievor walking by on his way to the diner car. He relates that at that time the grievor showed no signs of discomfort or disability in the way he was walking.

As the grievor’s back complaint persisted, Mr. Spalding was directed by Supervisor Scott to take Mr. Chahal back to a doctor on June 26, 1995. Based on that instruction, Mr. Spalding accompanied the grievor to the Revelstoke Medical Clinic where he was seen by Dr. Battersby. It appears that at the conclusion of that appointment Dr. Battersby indicated to Mr. Spalding that he should contact Dr. Battersby by telephone at some later time. The doctor told the grievor that he should return home to Calgary for physiotherapy, as remaining idle at the work site would not be constructive. Subsequently, Mr. Spalding gave Dr. Battersby’s business card to Deputy Supervisor Dale Winkler who indicated that he would call the doctor. He did so, as indicated in a memo from Deputy Supervisor Winkler, dated June 27, 1995. That memo reads, in part, as follows:

During the course of the arbitration hearing the Brotherhood objected to the admission of this information. In part, its Counsel submits, it should not be admitted as it represents an arguable violation of doctor-patient confidentiality. The Arbitrator is aware of no rule by which such evidence, once tendered, should be ruled inadmissible. The law of evidence does not recognize a privilege in respect of information between patient and doctor. Moreover, it would appear that, in substance, Dr. Battersby was acting in the position of a physician retained by the Company to assess the grievor’s fitness to safely return to work. Even if in that circumstance, the doctor might owe the patient an obligation of full disclosure of the same information he related to the Company, that would not appear to go to the admissibility of the evidence in question. It is, moreover, less than clear to the Arbitrator that, in any event, privilege could be invoked, as a matter of principle, in respect of such information, if the purpose of invoking the privilege would be to mask some illegality or fraud. I am not certain that Dr. Battersby can be said to have violated an ethical rule, any more than a psychiatrist who, during the course of therapy, might disclose that he or she has become aware of a patient’s intention to cause bodily harm to another. I would consider this information admissible, on that basis alone. Moreover, in the alternative, it is admissible not for what it might prove as to whether the grievor was in fact malingering, but to prove the very pertinent fact of the Company’s state of mind as it considered what action it might appropriately take to deal with the grievor’s case. Therefore, even if it is arguable that such evidence should not be admitted to prove the allegation of fraud against Mr. Chahal, a position I would be inclined to reject, it must be admitted as evidence going to the issue of whether the Company was justified in taking the actions which it subsequently did.

Before turning to the actions which the Company decided to take, one further fact should be related by way of background. The evidence discloses that on a previous occasion, apparently in 1991, Mr. Chahal had made a Workers’ Compensation Board (WCB) claim for an alleged on-the-job injury. During the course of the processing of that claim it appears Mr. Chahal was found to have provided false information to the WCB, in relation to his involvement in owning and operating a video rental store. On that basis his WCB claim was rejected. Further, the Company was aware of a long record of absenteeism caused by on-the-job injuries in the grievor’s work history. It appears that he suffered an on-the-job injury which resulted in his receipt of either Workers’ Compensation benefits or SunLife indemnity payments in virtually every year since he was hired by the Company. It is not disputed that the SunLife indemnities received by Mr. Chahal over the years for time off work totalled approximately seventeen months.

In the result, based on the observations of Mr. Spalding, the information provided by Dr. Battersby, the prior incident of false information being provided to the Workers’ Compensation Board and the grievor’s unusually high record of work related injury claims, the Company decided to retain the services of a private investigator to observe Mr. Chahal’s activities, to either confirm or rule out its suspicions about the legitimacy of his injury claim. The videotape which resulted from that investigation was tendered as evidence at the hearing.

The Brotherhood objected to the admission of that evidence. Its Counsel submits that, for reasons established in Canadian arbitral jurisprudence, the surveillance of the grievor in the circumstances of this case was not justified, and was in violation of his right to privacy. Counsel for the Brotherhood submits that that is the law as reflected in the following arbitration awards: Re Doman Forest Products Ltd., New Westminster Division and International Woodworkers, Local 1-357 (1990), 13 L.A.C. (4th) 275 (Vickers); Re Steels Industrial Products and Teamsters Union, Local 213 (1991), 24 L.A.C. (4th) 259 (Blasina); Re Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild, Local 87 (1992), 30 L.A.C. (4th) 306 (Springate); Re Labatt Ontario Breweries (Toronto Brewery) and Brewery, General & Professional Workers Union, Local 304 (1994), 42 L.A.C. (4th) 151 (Brandt); Re Alberta Wheat Pool and Grain Workers’ Union, Local 333 (1995), 48 L.A.C. (4th) 332 (Williams) CROA 1850, reported as Re Canadian National Railway Co. and B.M.W.E. (1988), 2 L.A.C. (4th) 92 (M.G. Picher) and CROA 2302.

Based on the above awards, the Brotherhood submits that there must be a balancing of interests as between the grievor’s right to privacy and the Company’s right to information about his activities which might be inconsistent with his claim for indemnity payments or for Workers’ Compensation benefits, which in the instant case were eventually denied. Based on the decision of Arbitrator Vickers in the Doman Forest Products case, Counsel for the Brotherhood stresses that three requirements should be satisfied before the Company can resort to the electronic surveillance of an employee in his or her off-duty activities. First, there must be reasonable and probable cause for the Company’s actions. Second, the surveillance must not be implemented in an unreasonable fashion. Third, it is submitted that the Company must have considered and exhausted alternative means of obtaining the information, including confronting the employee directly. Counsel also notes that the cases indicate that in many circumstances it will be necessary for an employer to first exhaust with an employee the possibility of performing modified duties, although it appears that in the instant case that was in fact done.

The Company’s representative submits that in the case at hand there was ample reason to resort to surveillance of Mr. Chahal’s activities during the time he was off work for his alleged back injury. In that regard he points to the information made available to the Company through Mr. Spalding and Dr. Battersby, coupled with the Company’s own concerns about the prior pattern of regular annual absences related to on-the-job injury involving the grievor, and at least one prior instance in which a claim for Workers’ Compensation benefits made by him was disallowed because of false information which he provided to the Workers’ Compensation Board in respect of his involvement in the operation of a private business. In all of these circumstances, it is submitted, it was neither realistic nor reasonable to expect the Company to convey to Mr. Chahal its suspicions that he was engaged in a course of deliberate fraud. Further, the Company’s representative notes that the grievor’s supervisors did exhaust with him the possibility of performing modified duties, which he said he could not do, and that it did so not only at the time of his injury, but also in late July of 1995, as reflected further in the facts related below.

At the hearing the Arbitrator reserved on the objection of the Brotherhood with respect to the admissibility of the videotape, and, following the practice reflected in the awards cited above, allowed the videotape to be presented, subject to an ultimate ruling as to its admissibility. Having considered the submissions of the parties and having closely reviewed the jurisprudence, I am satisfied that the videotape should, in the case at hand, be ruled to be admissible, for the reasons now related.

Labour boards and boards of arbitration have long recognized the need for a respect of the privacy of employees, both on and off the job, in keeping with a fundamental respect for human dignity. One of the contexts in which the issue has arisen is the circumstance in which a union alleges that company’s surveillance of its members constitutes an unfair labour practice. In the Toronto Star case Arbitrator Springate was faced with that allegation, relating to the videotape surveillance of employees engaged in picket line activity during the course of a lawful strike. In that case the arbitrator found that the videotape evidence, which was being presented to support the company’s case for discipline assessed against the grievor, was admissible, if it could be shown that the video accurately reflected the facts, that it was a fair document prepared without any intention to mislead, and if its authenticity was appropriately verified. In considering the unfair labour practice dimension of undue surveillance, Arbitrator Springate adverted to the decision of the Ontario Labour Relations Board in K-Mart Canada Ltd. (Peterborough) and SEIU, Local 183 (1981), C.L.L.C. ¶ 16,084, [1981] O.L.R.B. Rep. Jan. 60, where the following appears, at p. 313:

With respect to the general principles which govern surveillance, having considered the awards in Doman Forest Products and Steels Industrial Products as well as Re Puretex Knitting Co. and Canadian Textile & Chemical Union (1979), 23 L.A.C. (2d) 14 (Ellis); Re U.A.W., Loc. 704 and Ford Motor Co. of Canada Ltd. (1971), 23 L.A.C. 96 (Weatherill) and Re Liberty Smelting Works (1962) Ltd. and U.A.W., Local 1470 (1972) 3 S.A.G. 1035 (Dulude), Arbitrator Springate commented as follows, at p. 312:

The decision of Arbitrator Brandt in Re Labatt Ontario Breweries involves an exhaustive review of the jurisprudence in the area of employee surveillance. He notes, among the awards, the line of cases arising from the efforts of employers to seek, sometimes unduly, to search the personal effects and lockers of employees in the workplace, as well as to subject employees to medical examinations in circumstances which are not justified. At pp 161-63 he also reflects on the extension of the same principles to the area of surveillance of an employee’s off-duty activities:

Both the Doman Forest Products case and the Steels Industrial Products case must be understood as influenced, at least in part, by the provisions of the Privacy Act of British Columbia, R.S.B.C. 1979, c. 336 which governed in the jurisdiction where those cases were heard. That statute makes it an actionable tort "... for a person, willfully and without a claim of right, to violate the privacy of another." Section 1(2) of the Act reads as follows:

At p. 282 of the Doman Forest Products case Arbitrator Vickers considered, among other cases, the decision of Arbitrator Bird in Re Canada Post Corp. and C.U.P.W. (fingerprinting grievance) (1988), 34 L.A.C. (3d) 392, suggesting that an employee’s right of privacy could only be curtailed by express contractual language, and commented at p. 281-82 as follows:

Arbitrator Blasina agrees with Arbitrator Vickers in respect of the issue of balancing interests and, at pp. 276-77 of the Re Steels Industrial Products case expresses the following view of the principles to be applied:

This Office has had prior occasion to consider what constitutes reasonable and probable cause for an employer to resort to the surveillance of the off duty activities of an employee. In CROA 2302, an award involving Canadian Pacific Express & Transport and the Transportation Communications Union, dated November 13, 1992, the arbitrator was compelled to consider the admissibility of videotaped evidence of an employee involved in constructing a deck at his private residence at a time when he was claiming Workers’ Compensation benefits for an on-the-job back injury which he claimed disabled him from performing the duties of his job. As that case also originated in British Columbia, the union made reference to the Privacy Act in support of its submission that the surveillance of the grievor violated his rights and that the resulting videotape evidence should not be admitted. That submission was rejected, with this Office reasoning, in part, as follows:

Of the cases presented to the Arbitrator by the Brotherhood, only three resulted in the rejection of videotape evidence by a board of arbitration. Two of those cases, in my view significantly, emanate from British Columbia and appear to be substantially influenced by the impact of the Privacy Act of that province. The first is the decision of Arbitrator Vickers in Re Doman Forest Products Ltd., and the second is the award of Arbitrator Williams in Re Alberta Wheat Pool, a case which originated in Vancouver. The Alberta Wheat Pool case seems, upon close reading, to have been substantially influenced by the award in the Doman Forest Products case.

It is important to appreciate that the arbitrator in the Doman Forest Products case was met with a set of circumstances which are substantially distinguishable, on the facts, from those in the case at hand. It would appear that Arbitrator Vickers was not persuaded that the prior employment record of the grievor in that case justified recourse to electronic surveillance. Unfortunately, the preliminary decision of Arbitrator Vickers cited above does not involve his final ruling on admissibility, a decision which apparently went unreported. However, some of the rationale for the ultimate ruling can be discerned from the account of the unreported award which appears in the decision of Arbitrator Blasina in Re Steels Industrial Products where, at p. 277 the following appears:

The third reported case in which a board of arbitration declined to admit videotape evidence is the award of Arbitrator Brandt in Re Labatt Ontario Breweries. In that case, at pp 164-66, the learned arbitrator goes to great pains to distinguish the circumstances which he had to consider, and those considered by Arbitrator Blasina in the Steels Industrial Products case, where the videotape evidence was admitted. In particular, Arbitrator Brandt notes that the grievor before him had not been viewed as particularly notable by the company in respect of previous absenteeism, nor, does it appear, was there any prior instance of the grievor having deceived or misled the employer. As noted at p. 166, the arbitrator finds "... the company had in the past shown no reason to distrust the grievor’s reports of his medical condition." Further, on the same page, it is noted that the company made no offer of modified work to the grievor, a possibility which, it would seem, the arbitrator considered should have been explored.

In my view, the instant case is greatly distinguishable from the above cases. It is closer, on the facts, to that considered by Arbitrator Blasina in the Re Steels Industrial Products case, where the board ruled that the videotape evidence was admissible. In that case the company advanced evidence that the grievor had previously been duplicitous in the improper use of a work boot allowance, using it to purchase casual western boots, as well as evidence of other incidents reflecting negatively on his general honesty and trustworthiness. At p. 279 Arbitrator Blasina reasoned as follows to conclude that it would have been inappropriate and unrealistic to expect the company to simply confront the grievor with its suspicions:

It is, of course, true that as a general rule an employer can assert no right as custodian of an employee’s private life, away from the workplace. That much is amply reflected in arbitral awards dealing with discipline for non work-related activity, sometimes involving criminal conduct. Even in those cases, however, different considerations come to bear where a legitimate employer interest can be shown to be impacted by an employee’s conduct. (See, generally, Brown & Beatty, Canadian Labour Arbitration, 3rd ed. at para 7:3422.)

It is also important, I think, to distinguish between the policy considerations which underlie the natural concern courts and administrative tribunals have expressed in respect of the state engaging in excessive forms of surveillance of its citizens, contrary to the Charter of Rights and Freedoms, and those which may govern in the more proximate relationship of employer and employee. In this regard, it is notable that the Privacy Act of British Columbia itself expressly allows for a weighing of "any domestic or other relationship between the parties," as a factor to be considered in circumscribing the limits of a person’s right to privacy. The employment relationship is generally based on the payment of money by the employer to the employee for good consideration, subject to certain well-established conditions. Part of the bargain in many contemporary employment relationships involves the payment by the employer or its insurance carrier of sickness benefits or other forms of insurance or indemnities, short term or long term, when an employee is incapacitated by illness or injury. An employer obviously has a legitimate interest in preventing abuse of that system of employee protection by those who would advance fraudulent claims.

That interest must be fairly balanced with what is becoming recognized as the employee’s interest in a respect for his or her personal privacy. The employer’s interest does not extend to justifying speculative spying on an employee whom the employer has no reason to suspect will be dishonest. As a general rule, it does not justify resort to random videotape surveillance in the form of an electronic web, cast like a net, to see what it might catch. Surveillance is an extraordinary step which can only be resorted to where there is, beforehand, reasonable and probable cause to justify it. What constitutes such cause is a matter to be determined on the facts of each case. As well, the method and extent of such surveillance must be appropriate to the employer’s purpose, and not excessive or unduly intrusive. A legitimate interest in an employee’s physical condition might not, for example, justify the covert examination of his or her bank records or other personal information.

In my view, in a case such as this, in considering the admissibility of videotape evidence acquired in the course of surreptitious surveillance, the appropriate test involves a two-part analysis.

This approach, diligently applied, should protect reasonably against the possible abuse of the right of an employer to resort to surveillance of its employees, in a manner consistent with the obligation which boards of arbitration have to safeguard the integrity of their own procedures, and the credibility of the arbitration process generally.

When the foregoing considerations are applied to the case at hand, what is the result with respect to the issue of the admissibly of the videotape evidence? In the Arbitrator’s view it is not difficult to conclude that in this case there were ample grounds for the Company to resort to surveillance of the grievor. As the record discloses, there was in 1991 a previous occasion on which Mr. Chahal was found by the Workers’ Compensation Board to have provided false information with respect to his apparent involvement in the operation of a video rental store while claiming benefits. It is not denied that on that basis his claim was rejected. Further, as related above, shortly after the grievor left the work site with his complaint of a back problem the Employer received a report from a medical doctor intimating that in his opinion, based upon certain "false tests" which he gave the grievor during a medical examination, Mr. Chahal was faking his injury. In addition, the Company was in possession of the report of Assistant Supervisor Spalding, to the effect that he had observed the grievor walking in a manner inconsistent with his claim of injury, at a time when Mr. Chahal may have believed he was not being observed. Finally, to all of that must be added the concern which flows naturally from the grievor’s unusual pattern of on-the-job injuries which, it appears, far exceeded the average for employees in general. It seems to the Arbitrator that if it were not appropriate for an employer to resort to surveillance of an employee in such a case, it would be difficult to imagine when it would.

Nor do the general facts disclose, to my satisfaction, that there were reasonable alternatives open to the Company. Firstly, as reflected above, the employer did offer modified duties to Mr. Chahal, both at the time of his injury and a month afterwards. Further, regard being had to a number of facts, it would have been naively unrealistic, and indeed counterproductive to determining the truth, for the Company to have communicated its suspicions or concerns to Mr. Chahal, in the circumstances of this case. Foremost among those facts is the record of his prior willingness to deceive the Workers’ Compensation Board, in respect of a claim for benefits for a work related injury claim, and at least one medical opinion which suspescted that he was faking. On the whole, the Company had little reason to expect a truthful answer from the grievor.

In the result, I must find, based on the grievor’s record, the observation related by his supervisor, the report of Dr. Battersby and Mr. Chahal’s previous false statements to the Workers’ Compensation Board, that the Company had reasonable and probable grounds to engage in surveillance of his activities during the period of his absence from work, a period in relation to which he was then making an indemnity claim. I am also satisfied that the method by which the grievor was observed, and recorded, and the times and places of surveillance, did not involve an unduly intrusive method or degree of observation. As described below, all of the grievor’s actions which were recorded for presentation in evidence were publicly visible. I am satisfied that the surveillance was justified, was conducted in a reasonable manner and that the videotape evidence, the accuracy of which is not challenged, should therefore be admitted.

The video evidence is, by any account, quite remarkable. It represents the activities of Mr. Chahal at his residence on July 26 and 27, 1995. On those two days, over a substantial period of hours, the grievor is seen lifting a heavy rototiller out of his vehicle, tilling the front and back yards of his property, vigourously raking the area, rolling it with a heavy lawn roller and, ultimately, engaging in the carrying and laying of rolls of sod over the whole area, with some assistance from members of his family. During the whole of the time he is seen to be lifting, bending, twisting, working in close quarters under a deck and, on one occasion, deadlifting what is described as a 120 pound rototiller out of the trunk of his car.

By no stretch of the imagination can the activities of Mr. Chahal on the two days in question be reconciled with his statement given to the Company’s Claims Department, during the course of an interview several days later, on July 31, 1995. That interview contains, in part, the following statements by Mr. Chahal:

To put it delicately, a comparison of the videotape evidence with the above representations made by Mr. Chahal to the Company makes it difficult for the Arbitrator to dismiss the suggestion of the Company that there might be some deliberate falsehood in Mr. Chahal’s statements.

Nor does it appear that the grievor’s sense of the truth was much altered by his subsequent confrontation with the videotaped evidence. When made aware of the evidence in the Company’s possession, regarding his activities at his residence on July 26 and 27, Mr. Chahal attempted to revise his earlier statement, recounting, during the course of his disciplinary interview, that he and his family decided that he should try doing some work to see how he would feel, and that he therefore undertook the sod laying, with the benefit of some Tylenol 3 tablets. At that stage he confirmed, however, that he did not have his doctor’s authorization to do the yard work. The Company did not believe that explanation, and discharged Mr. Chahal, based on all of the evidence available to it, on September 25, 1995.

The grievor’s version of events changed still further, after his discharge. Notwithstanding his prior explanations, the grievor tendered, through his Union, the following letter from his physician, Dr. P. Wadhwa, of Calgary, Alberta. It reads as follows:

As is evident from the above, the explanation given by Dr. Wadhwa is entirely contradictory to the answers given by the grievor during the course of the Company’s disciplinary investigation, on August 29, 1995. During that interview the following exchange was recorded:

In light of the above, if I must, I am driven to the unfortunate conclusion that the statement of Dr. Wadhwa, dated September 28, 1995, is ex post facto, self serving, and wanting in credibility. On the whole of the record, I am satisfied that Mr. Chahal did, as originally suspected by Dr. Battersby, feign the injury to his back or, alternatively, the gravity of that injury, providing false information to the Company to support a claim for a compensable absence from work which was fraudulent and which, ultimately, was not allowed.

In CROA 2651 the following comments were made:

In the Arbitrator’s view the evidence adduced discloses, beyond any serious discussion, a remorseless pattern of deliberate falsehood and deceit engaged in by the grievor, to falsely claim benefits for an injury which he did not in fact sustain, or which, if he did sustain it, was plainly not such as to prevent him from performing either his regular duties or the modified duties offered by the Company. There is no basis upon which an employer should be expected to maintain a relationship of trust with a person who has conducted himself in the fashion exhibited by the grievor. In the circumstances I am satisfied that the discharge of Mr. Chahal was for just cause, and that there are no mitigating factors which would justify a reduction of that penalty. The grievance is therefore dismissed.

March 15, 1996 (signed) MICHEL G. PICHER