Smoking in the Boys’ Room: Termination Upheld for School Custodian Caught Smoking Marijuana At Work

2 mai 2016 | Dirk L. Van de Kamer

( Disponible en anglais seulement )

Regrettably, some employees choose to consume alcohol and/or illegal drugs while at work.  They may do so because they have an addiction or they may do so simply because they like to and don’t feel they will get caught.  When an employee gets caught doing so, they may, depending on the nature of their workplace,  reasonably expect to lose their job as a result.  When the workplace is a public school, the likelihood of dismissal is understandably heightened.

However, in order to defend such a dismissal, the employer must prove its case.

As workplace drug and alcohol use is often difficult to detect, some employers resort to covert surveillance.  When employees are dismissed as a result of such surveillance evidence, unions often argue that the surveillance evidence ought not to be admitted, typically on the grounds that to do so would infringe the employee’s right to privacy.

A recent Ontario arbitration award offers a solid approach to the admissibility of such evidence in a unique context in which the parties’ collective agreement set out restrictions on the gathering of such information.

The case involved a night shift public school custodian who smoked marijuana at work, despite the fact that he had been trained in the employer’s zero tolerance of drugs in the workplace.  When his employer heard rumours of such consumption, it elected to engage a third party to conduct covert surveillance and report any illegal drug use.  When the surveillance proved the custodian had smoked marijuana at school during working hours, while in uniform, his employment was terminated.

In challenging the custodian’s termination, the union argued as a preliminary matter that the video surveillance evidence, which had been gathered (somewhat) in violation of the collective agreement’s restrictions, ought not to be admitted into evidence.

The employer argued that the surveillance evidence ought to be admitted solely as a result of its relevance and that any collective agreement violations resulting from the carrying out of the surveillance was not fatal to the employer’s case.

In assessing the matter, the arbitrator weighed the competing interests of the employee’s alleged right to privacy against the employer’s reasonable interests in maintaining a safe and drug free school environment. 

In assessing the employee’s privacy interest, the arbitrator noted that the location and context of the surveillance are important.  In this case, the arbitrator determined that the employee had a very low expectation of privacy in that his misconduct occurred while at work, in uniform and in a manner visible to the public. 

As for the employer’s interests, the arbitrator found that it had engaged in surveillance in a reasonable manner and for a reasonable purpose.  Further, despite the employer’s failure to comply with the collective agreement’s (procedural) provisions relating to video surveillance, the arbitrator found no prejudice to have been suffered by the employee. 

As a result, the video surveillance evidence was admitted.

This case lends support to employers’ right to engage in reasonable workplace surveillance and to act upon the information gathered as a result.  In doing so, the case appropriately downplays the notion that employees have a reasonable expectation of privacy at the workplace.

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