Date: 2009
Author: Daniel A. Lublin
Publication: Metro

Delicate balance in the workplace

What happens when employee privacy rights collide with an employer?s right to monitor its workplace? As the London, Ontario offices of Cornerstone Properties recently discovered, an employer must tread carefully or risk inadvertently dismissing its own employees.
After working for seven years without incident, Coleen Colwell trusted her employer. She had been promoted to manager and was given her own private office at the company’s workplace. However, her trust was dashed when she suddenly learned that a secret surveillance camera had been installed in the ceiling of her office.
Colwell immediately had the camera removed. In the course of investigating how it got there, she learned that it had been surreptitiously installed by her boss, Trent Krauel. He explained to Colwell that it was the only secret camera in the office and had been put there after he suspected that some of the maintenance staff had been stealing from the store. Krauel told Colwell that he didn?t think that she was involved in the thefts and that the camera had not been working properly anyway. He was sorry that Colwell was upset but did not think there was a need to offer an apology. Instead, he felt he had the ?right? to secretly install the camera.
Colwell didn?t believe Krauel, and his unremorseful explanation made matters worse. She knew that no thefts had ever taken place from her office and questioned why the camera?s presence had been kept from her, since she was the individual responsible for the maintenance staff, not Krauel.
Colwell felt violated and refused to continue to work as long as Krauel was her boss. She saw her doctor for stress and was prescribed sedative drugs. After speaking with her lawyer, Colwell told the company that she treated the incident as a breach of contract and would be leaving, but only with a severance package. When Cornerstone refused to negotiate, Colwell sued for constructive dismissal.
At trial, Colwell argued that the secret installation of the camera, Krauel?s failure to apologize, and his declaration that it was his “right” to put the camera in her office without telling her first, all amounted to her constructive termination. Without even a credible explanation for his actions, she had no reasonable option but to leave, Colwell argued.
Cornerstone saw it differently, arguing that where there is a reasonable apprehension of employee abuse, a surveillance camera may be justified. But Colwell was not under suspicion, leading the judge to ponder what the true rationale behind the camera?s installation was. When asked at trial why he withheld the camera?s presence from Colwell, Krauel responded, of course, that it was because it was ?secret.?
Krauel?s and Cornerstone?s position didn?t impress the judge, who found that a secret camera being installed in an employee?s office without her knowledge, coupled with a ?preposterous? explanation, amounted to Colwell?s constructive dismissal. Without being able to trust her employer, she was entitled to severance upon her departure. Courts are frequently asked to rule on the delicate balance between an employee?s right to privacy and an employer?s right to manage the workplace. While employers do retain the right to monitor their employees, that exercise must only be performed in good faith and where there is a reasonable belief that an offence is being committed. Otherwise, employers may find themselves on the wrong side of another lawsuit.

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