Facts

In this case, the plaintiffs were both employees at Magasin Baseball Town inc. ("Employer"). The Employer's stores were equipped with cameras, positioned at various locations, allowing real-time viewing.

Following the publication of a negative review from a customer on the Employer's social media (criticizing the customer service specifically), the owner and managers of the store began to watch the surveillance cameras regularly. This increased video surveillance resulted in phone calls from the Employer when it noticed behaviour it did not appreciate. This situation allegedly created a feeling of anxiety among the plaintiffs, who felt constantly watched while performing their work.

The plaintiffs therefore alleged having been subjected to psychological harassment and each filed a complaint under section 123.6 of the Act respecting Labour Standards ("ALS").

Claims of the Parties

The plaintiffs described constant and repetitive calls from the store owner during which he blamed them for not doing their work properly, criticized them or asked them where an employee, who was not appearing in the camera images, was. They complained that the Employer's excessive video surveillance and inappropriate interventions constituted psychological harassment under section 81.18 of the ALS.

The Employer's position was that the presence of cameras has a dissuasive effect on shoplifting. Moreover, the viewing of the images captured made it possible to identify shortcomings in customer service. The Employer also believed that there was a real problem in connection with the personal use of smartphones at the workplace.

The Judgement

First, the Tribunal recognized that the installation and use of surveillance cameras is justified to prevent shoplifting. However, in the present case, this objective quickly gave way to an increased, and even excessive, use of cameras:

"However, the problem is that this initial objective of preventing shoplifting [...] has led to regular and systematic use of a tool for managing and controlling the work of its employees, particularly when they are alone and without the presence of managers." (per the administrative judge - our translation)

In its decision, the Tribunal did not question the Employer's right to control the work performance of its employees and to give them instructions. However, it restated that case law is clear in the context of a complaint of psychological harassment: the employer may exercise its management right, but this exercise must be reasonable and free from abuse.

Although the Employer was successful in demonstrating a lack of compliance with its smartphone policy, the Tribunal was of the view that this problem did not allow such surveillance of employees. The Tribunal stated that this constant monitoring of employees was disproportionate, excessive, and unreasonable.

Could this be a form of psychological harassment?

On this question, the administrative judge found that the plaintiffs were aware that they were always being filmed and that they felt constantly monitored and scrutinized while performing their work. They were constantly afraid of making a mistake that could result in a call from the owner. The Tribunal concluded that this regular and systematic use of cameras caused a feeling of anxiety, depreciation and humiliation for the plaintiffs and constituted a violation of their dignity and integrity.

Moreover, knowing that this surveillance was a source of stress for its employees, the Employer had not changed its use of surveillance cameras.

For these reasons, the Tribunal concluded that the plaintiffs were victims of psychological harassment and that the Employer had not fulfilled its obligation to prevent and stop this harassment. The complaints of harassment were therefore upheld.

Conclusion

This decision is a good reminder for employers of the importance of being careful and judicious when choosing to use video surveillance in their establishments. According to the conclusions of this decision, besides constituting an unreasonable working condition, abusive, excessive, or unjustified surveillance may also constitute a form of psychological harassment.

Note: This a reprint of an article by Justine Chaput of Stikeman Elliott LLP.