Two employees of the City of Vernon fire department have been fired after a secret camera in the chief’s office caught them having sex there. The case shows that privacy rules lag behind increasingly pervasive technology.
The interim fire chief, David Lind, believed someone was illicitly rummaging through his filing cabinet. He installed a hidden camera that revealed rather different goings-on.
Both employees appealed their dismissal. However, an arbitration panel turned them down, in part, on the grounds that “the brief, fleeting loss of privacy by individual firefighters … was at the lower end of any range of seriousness of invasion of privacy at work.”
Really? If this wasn’t a serious invasion of privacy, we are entitled to wonder what might be. And are labour-arbitration panels the right forum for deciding such far-reaching privacy matters?
But there are broader issues at stake.
This is not an attempt to excuse the employees’ behaviour. But where is the due process here?
In criminal matters, evidence collected by covert means, such as a police wiretap, would be admitted in court only if proper procedures were employed. On numerous occasions, indisputable cases of wrongdoing have been dismissed because due process was not followed.
In the case of employer-instigated investigations, the requirements are different. Privacy legislation gives management the right to use covert surveillance, but only when no other options are available, and only when it is narrowly focused on a particular employee suspected of wrongdoing.
Arguably, the second of those conditions was not met in Vernon. The two employees caught on video were not the subject of an ongoing investigation specific to them. Their actions were recorded purely by accident.
Yes, they were guilty of improper conduct. But that was revealed by covert means that breached their due-process rights. In a court of law, that might result in an acquittal.
There are two problems here. Hidden cameras are increasingly inexpensive and easily installed. When a technology becomes available, someone will abuse it.
Second, the privacy constraints laid out in legislation are too permissive. They allow covert surveillance to be used in a manner that might record anyone and everyone, albeit unintentionally.
However, there is another side to this issue. Some parents use “nanny-cams” to secretly monitor the behaviour of babysitters, if they have reason to suspect ill-treatment of their children.
And family members sometimes install hidden cameras in residential-care rooms if they suspect their loved ones are being abused. This form of surveillance has unearthed more than a few instances of inappropriate staff behaviour.
Current privacy legislation is unclear about both of these situations. Neither has been put to the test in B.C.
Yet both seem to have at least some merit. True, the installation of hidden cameras in residential-care rooms risks capturing employee behaviour that is completely innocuous. In that respect, it is an intrusion on staff privacy.
The problem is, abusive behaviour in these facilities is known to occur. And family members might have no other means of uncovering such behaviour if management is unresponsive.
The preferred solution, of course, would be stricter supervision, but failing that, an undesirable solution might be better than none.
In all of these cases, the issue comes down to a balance of competing interests and also the preponderance of power. In a workplace environment, almost all of the power rests with the employer. That argues for tighter restraints on the use of covert surveillance.
In the case of babysitters or long-term-care staff, the potential victims of maltreatment have next to no power. That might warrant a more lenient attitude.
But the main threat lies in the proliferation of these technologies. When anyone can install them, no one’s privacy is safe. We need tougher limitations than currently exist, particularly in protecting the powerless.