Organize: Do employers have the right to use surveillance on their employees?
L. Craig: Generally, the courts recognize the employer’s right to control the execution of the work. However, it is important to clarify that there are limits to employer surveillance. For example, the courts reject the idea that a camera can be constantly aimed at one or several people. For the specific surveillance of a person to be acceptable, the employer must have serious grounds.
Organize: Do the same principles apply to the surveillance of Internet use (e-mail or browsing)?
L. Craig: The courts have not said much on the legitimacy of this type of surveillance. However, in the light of the jurisprudence, we have observed that they tend to apply similar criteria. It is necessary to have solid grounds to perform specific surveillance. Called upon to judge an employee accused, for example, of inappropriate use of technological material, the Court will consider several mitigating factors, such as a clean disciplinary record or the absence of a company policy, or aggravating factors, such as a high degree of autonomy.
Organize: Are unionized employees better protected?
L. Craig: They have more recourse because they have access to arbitration. Furthermore, they benefit from the legal and moral support of their union. The procedures are long and complicated. Federally, a complaint is submitted to the Privacy Commission of Canada, which investigates and then passes on its recommendations, which are not automatically enforceable. If one of the parties is dissatisfied, it then has to appeal to the Federal Court. Further delays! In Quebec, for example, a non-unionized employee has to lodge a complaint with the appropriate authority: the Labour Standards Board, the Human Rights Commission, the Privacy Commission, etc.
Organize: Tailing someone is an extreme form of surveillance. When is it justified?
L. Craig: The courts recognize that having someone tailed is justified in cases where, for example, an employee who wrongfully receives payment for professional injury. But here also, before ordering a tail, the employer must have serious reasons to believe that a fraud is being perpetrated. Organize: Were you surprised by what your research revealed?
L. Craig: One of my biggest surprises concerns the use of computers. A lot of people believe, wrongly, that computers are confidential, that they are anonymous. But nothing is lost in data processing. If someone wants to, they can find everything. So be careful!
The book Au travail et sous surveillance is available (in French only) for $25 from CUPE Quebec at 514-384-9681.