Heard in Calgary, Wednesday, 11 November 1998

concerning

and

Dismissal of Yard Foreman K.B. Goalen, Regina, Saskatchewan.

On July 15, 1997, Yard Foreman Goalen was formally investigated in connection with:

On July 24, 1997, Yard Foreman Goalen was dismissed from Company service for:

The Council appealed Mr. Goalen’s dismissal and has requested the reinstatement of Yard Foreman Goalen without loss of seniority and with full compensation for all time lost.

The Company has denied the Union’s request.

There appeared on behalf of the Company:

R. M. Smith – Labour Relations Officer, Calgary

M. E. Keiran – Director, Labour Relations, Calgary

J.B. L. Dragani – Labour Relations Officer, Calgary

G. D. Johnson – Manager, Yard Operations, Moose Jaw

J. W. Greenway – Operations Coordinator, Regina

Dr. K. Brett – Regional Physician – Prairie District

And on behalf of the Council:

D. Ellickson – Counsel

L. O. Schillaci – General Chairperson, Calgary

B. McLafferty – Vice-General Chairperson, Moose Jaw

M. G. Eldridge – Vice-General Chairperson, CN West, Edmonton

W. McCotter – Local Chairperson, Edmonton

B. Sparks – Local Chairperson, Regina

K. Goalen – Grievor

This grievance concerns the discharge of Yard Foreman K.B. Goalen for the alleged abuse of Workers’ Compensation benefits. The grievor maintains that he sustained a shoulder injury while at work on or about June 16, 1997. Shortly thereafter he remained off work and under the apparent separate care of several doctors. On July 5, 1997 the Company utilized the services of a private investigator, Mr. John Rombough, who videotaped the activities of Mr. Goalen outside his auto mechanics shop adjacent to his home in Bayard, Saskatchewan. On the strength of the videotape so obtained, the Company instituted a disciplinary investigation and came to the conclusion that the grievor was falsely claiming Workers’ Compensation benefits, engaging in independent work activities incompatible with his alleged shoulder injury.

The sole issue in this preliminary award is the admissibility of the videotape evidence obtained by the Company. Counsel for the Council asserts that in the circumstances disclosed the Company did not have reasonable grounds to undertake covert surveillance of the grievor at his home. The position of the Company is that based on the information available to Company supervisors there were sufficient grounds to retain the services of the private investigator and engage in surveillance of Mr. Goalen, and that the videotape so obtained should be admitted into evidence.

Labour boards and boards of arbitration have long recognized that the surveillance of employees by their employer is an extraordinary measure which can only be resorted to with proper justification. Workplace surveillance may be appropriate to further the legitimate interests of an employer, for example to promote safety and security, or to deter theft and vandalism. Even in such circumstances, however, in accordance with Canadian arbitral jurisprudence, workplace surveillance must be judiciously used and manifestly justified: Re Puretex Knitting Co. and Canadian Textile & Chemical Union (1979), 23 L.A.C. (2d) 14 (Ellis); Re U.A.W., Loc. 707, and Ford Motor Co. of Canada Ltd. (1971), 23 L.A.C. 96 (Weatherill); Re Liberty Smelting Works (1962) Ltd. and U.A.W., Loc. 1470 (1972), 3 S.A.G. 1035 (Dulude).

Boards of arbitration have also considered with great care the circumstances in which an employer may be justified in resorting to covert surveillance of the activities of employees away from the workplace, whether at their homes or elsewhere. This Office had occasion to fully consider the reported jurisprudence relating to the balancing of interests as between the legitimate business concerns of employers concerned about policing the abuse of false indemnity claims and the right to personal privacy and dignity of employees. In Re Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees (1996), 59 L.A.C. (4d) 112 (M.G. Picher) (CROA 2707) at p. 124 the following comments appear, concerning the approach to be taken by a board of arbitration with respect to the admissibility of surreptitiously obtained videotape evidence:

As noted above, in the instant case the Council takes issue only with the first part of the two-fold test so described. It maintains that it was not reasonable, in the circumstances of this case, for the Company to resort to the services of a private investigator to observe and electronically record the activities of Mr. Goalen at his home during the period of his leave of absence, in respect of which he was claiming benefits from the Saskatchewan Workers’ Compensation Board.

In support of its actions the Company called two witnesses. Mr. J.W. Greenway, Operations Coordinator of the Company in Regina, the grievor’s home terminal, relates that on several occasions he heard rumours being expressed by members of running crews to the effect that Mr. Goalen was utilizing his workers’ compensation leave to perform work in his own private business, an automobile service shop which he operated at his home. Mr. Greenway was specific that he had heard such comments several times from various yard crews, sometimes in a joking tone. He relates that the comments which he kept hearing caused him concern, and prompted him to verify his own concerns with another member of local management, Supervisor Teisdale. When Mr. Greenway explained to Mr. Teisdale the nature of the rumours that he had heard, Mr. Teisdale confirmed that he had separately heard the same rumours that the grievor was operating an auto mechanics business from his home during his leave of absence. Mr. Greenway relates that on the strength of the information so gathered he became suspicious and contacted his own supervisor, Mr. Gordon Johnson, Manager of Yard Operations at Moose Jaw, who is also responsible for overseeing Regina.

Mr. Johnson confirms that he received a telephone call from Mr. Greenway. Based on the information provided to him by the Regina Operations Coordinator, to the effect that there were multiple rumours in the workplace at Regina that the grievor was operating an auto mechanics service business at his home during his workers’ compensation leave, Mr. Johnson decided to retain an investigator to undertake surveillance of the grievor’s activities.

Counsel for the Council argues that in the circumstances the Company had insufficient grounds to proceed with surreptitious surveillance of the grievor at his home. He submits that either Mr. Greenway or Mr. Johnson should have taken steps, to in his words, "substantiate the rumours" which had come to their attention in the workplace before resorting to surveillance. He also questioned both witnesses as to why they would not have confronted the grievor with the rumours they had heard. In this regard he stresses that there is no evidence of a prior history of absenteeism nor of abuse of sick leave or Workers’ Compensation claims by Mr. Goalen, such as evidenced in the CP Rail case cited above. In support of his submissions Counsel refers the Arbitrator to a number of awards, including Re Labatt Breweries (Toronto Brewery) and Brewery, General & Professional Workers Union, Local 304 (1994), 42 L.A.C. (4d) 152 (Brandt); Re Alberta Wheat Pool and Grainworkers’ Union, Local 333 (1995), 48 L.A.C. (4d) 332 (Williams); Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1997), 61 L.A.C. (4d) 218 (Saltman).

Counsel for the Company responds that there were ample grounds for the Company to take the action which it did. He stresses that Mr. Greenway heard reports from a number of employees which indicated that the grievor might be improperly engaged in another business during his Workers’ Compensation leave of absence. He then took the additional step of verifying the circulation of the rumours with Supervisor Teisdale, and upon obtaining confirmation reported the matter to Mr. Johnson. Counsel also stresses that the grievor’s residence is in a rural area some forty-five minutes travel from Regina, so that it was not practicable for the supervisors to make their own preliminary visual verification of the circumstances at the grievor’s residence.

Upon a close examination of the evidence adduced, the Arbitrator is satisfied that in the circumstances disclosed it was not unreasonable for the Company to retain the services of an investigator to inquire into the activities of the grievor at his home. As is evident from the account of the two supervisors who testified at the hearing, this is not a situation in which the Company engaged in random or speculative surveillance of an employee’s activities. Nor did Mr. Greenway and Mr. Johnson take action solely on the strength of a single report or one off-hand comment. As Mr. Greenway stressed, his concern mounted precisely because he repeatedly heard the same report respecting the grievor’s purported activities at his home from a number of different yard employees. Moreover, he did take steps to substantiate the existence of those reports in the workplace, to the extent that he inquired further of Supervisor Teisdale as to whether he had heard the same accounts. It is only when he received confirmation from Mr. Teisdale that Operations Manager Greenway considered the matter sufficiently serious to report it to Mr. Johnson. Mr. Johnson, in turn, considered that he had enough information from his subordinate supervisors in Regina to take the steps which he did.

It is also significant, in my view, that the grievor’s home is a considerable distance from Regina, requiring some forty-five minutes’ drive. Without necessarily agreeing that it would be appropriate for supervisors to themselves to attempt to observe or police the activities of an employee at his or her residence for the purposes of substantiating reports of improper activity, it is clear that in the circumstances of this case that option was in any event relatively impracticable.

Needless to say, in a dispute such as this each case must be determined upon its own particular facts. Upon a review of the evidence adduced, I am satisfied that in the case at hand the information repeatedly provided to the Company’s supervisors was sufficient to justify the actions which they took. Additionally, although it was not part of the decision making process engaged in by Mr. Johnson, there is further objective evidence which would also tend to support the actions of the employer. As stressed by Counsel for the Company, in a relatively short period of time the grievor had provided the Company with medical reports from three separate and apparently unrelated doctors, each indicating that Mr. Goalen would be absent for successively longer periods of time. In the Arbitrator’s view the questionable pattern of medical consultation suggested by those reports would also have been an element which would tend to justify management concerns as to the legitimacy of the grievor’s claim of ongoing incapacity, particularly when coupled with the reports received by two separate supervisors in the employee’s workplace.

For all of the foregoing reasons the Arbitrator rules that the videotape evidence is admissible. The matter shall be listed to be heard on its merits.

November 17, 1998 (signed) MICHEL G. PICHER

Yard Foreman K.B. Goalen, Regina – discharge – WCB benefit fraud – arbitrator discusses surreptitious surveillance – video tape evidence ruled admissible

Discipline, discharge, WCB benefit fraud, surreptitious surveillance, video tape, admissibility