By Robert Smithson 

When it comes to the workplace, it’s fair to say the employer has the authority to take some liberties in monitoring the activities of employees.  According to an Ontario judge, surreptitiously spying on a manager isn’t one of them.

Colleen Colwell was a commercial manager of the Oxbury shopping mall, working for Cornerstone Properties Inc.  Colwell had been employed by Cornerstone for over seven years.

She performed her duties out of an office located in the shopping mall and was responsible for the management of mall maintenance staff.  There was no issue with her performance of her duties. 

In August of 2004 she learned that her immediate boss, one Trent Krauel (the Vice President of Finance) had secretly installed a video camera in the ceiling of Colwell’s office.  By that point in time, the camera had been in place for approximately 10 months.

Colwell sought an explanation from her boss, who admitted he had installed the video camera and that it was the only one in the mall’s office area.  Krauel cited several thefts having occurred on the premises and claimed the camera was there to assist in detecting theft.

The Vice President denied any intention of spying on Colwell and stated he wished her to remain as an employee.  He claimed that he had the right to install the camera and, while he didn’t feel the need to apologize, he was sorry Colwell was upset.

Colwell was distraught over the revelation of the presence of the secret camera and sought medical assistance for stress.  She did not believe the explanation her boss had provided as she knew no thefts had occurred in her office.

It seems there had been some thefts but they had not taken place in Colwell’s office.  It also seems that the camera was not activated only when the maintenance staff was present after hours.

Colwell felt violated and could not continue working for Cornerstone as long as Krauel was present.  She treated the entire incident as a breach of her employment contract and sued for damages for constructive dismissal. 

Colwell felt that the secret installation of the camera, the lack of an apology, the declaration by her boss that he had the right to install the camera, coupled with the lack of a credible explanation made it impossible for her to continue in her employment.

The Ontario Court of Superior Justice reviewed the state of privacy rights in the workplace.  It concluded that “a secret camera being installed in a trusted manager’s office without her knowledge, although perhaps acceptable employer conduct in itself, coupled with a totally implausible explanation” renders the employer’s actions unacceptable.

The Court found “preposterous” the Vice President’s explanation that he thought thieves might move into Colwell’s office to “review the loot”.  It stated that the “cost to human dignity caused by such surveillance, coupled with the unbelievable explanation” left Colwell unable to rely on her supervisor’s honesty and trustworthiness.

The employer’s conduct amounted to more than merely bad faith or unfair dealing – it poisoned the workplace.  Not only had Colwell’s privacy been violated but so had her contract of employment.

Cornerstone’s conduct violated an implied duty of good faith and fair treatment.  The Court determined that Colwell was justified in leaving her employment and damages were awarded in the amount of seven months’ salary.

Whatever the true reason for the secret camera, Cornerstone’s actions were not only unlawful but they cost the company a long-serving, well regarded employee.  It’s difficult to see anything positive coming out of such an ill-advised course of conduct.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. If you have a labour or employment question for him to answer in a future Legal Ease, email him at smithson@pushormitchell.com. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.