Two corrections officers were terminated for professional misconduct following an incident, that occurred during the transportation of an inmate to and from a hospital for medical treatment.1 The incident was reported to the employer by a hospital employee, who stated the two corrections officers conducted themselves in an offensive and unprofessional manner.

The employer began an investigation. As part of its investigation, the employer decided to review audio recordings that were made automatically in the inmate transport vehicle while its engine was on. The corrections officers were not aware that audio recordings were being made of their conversations and statements.

Following its investigation, the employer terminated both corrections officers, on the basis that they conducted themselves in an inappropriate and unprofessional manner while at the hospital. As well, the employer's investigation determined one officer made inappropriate and unprofessional comments to the other officer in front of the inmate, while in the inmate transportation vehicle.

At the arbitration hearing, the union objected to the introduction of the audio recordings from the inmate transport vehicle on the grounds that they were a form of covert surveillance because the grievors did not know that audio was being recorded in the inmate transport vehicle. In other words, the union argued, the audio recordings should be excluded from evidence because the manner or reasons for collection was unreasonable in the circumstances. The union did not start a policy grievance challenging the employer's general policy to record audio in the inmate transportation vehicle.

The Audio Recordings Are Admitted into Evidence

In analyzing whether to admit the audio recordings into evidence, the arbitrator concluded that the recorded audio was central to the employer's decision to terminate the grievors.

The arbitrator found it was not unreasonable for the employer to access and then introduce the audio recordings as evidence because the employer's decision to download and review the recording came after it had met with the grievors and the inmate, finding that some of their conduct was unprofessional. The audio recordings were then used to supplement the employer's investigation and decision-making process in deciding to ultimately terminate the grievors' employment.

The arbitrator stated that accessing the recordings was particularly reasonable in the circumstances because the grievors had no reasonable expectation of privacy. They were aware the inmate could overhear their conversation in the inmate transport vehicle.

Takeaways

The admissibility of so-called covert surveillance or recordings into evidence will usually be contested by unions in the grievance and arbitration process. When conducting an investigation, an employer should carefully assess and weigh the various sources of evidence and first start with direct witnesses, if available. After that, employers might be able to rely on surveillance and other recordings for the investigative process, especially where it is the best evidence available.

When implementing surveillance or recording systems, unions may challenge their implementation. Though in this case the employer was permitted to introduce audio recordings, to best guard against challenges employers should have well drafted policies regarding the use of surveillance and recordings systems. In particular, these policies should specify when, how, or for what purposes such data and information captured might be used.

With strong policies providing the foundation for surveillance and recording technology, employers will be well-situated to rely on these systems when conducting investigations.

footnote

1 Nova Scotia Government and General Employees' Union v. Nova Scotia (Department of Justice, Correctional Services) (Csernyk Grievance), [2023] N.S.L.A.A. No. 3 (Augustus)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.