A hidden surveillance that captured something rather unexpected is the focus of a dispute between the Vernon Professional Firefighters Association IAAF Local 1517 and the City of Vernon.
One firefighter and a fire service employee were terminated in March after being caught by the hidden camera having sex in now fire chief David Lind’s office (Lind was interim chief at the time of the incident).
The camera had been installed four months prior to watch if someone was going through Lind’s locked file cabinet.
An arbitration panel ruled 2-1 in favour of the city being able to use the video footage of the dalliance to support their reason for termination.
The union filed grievances on behalf of the terminated employees, acknowledging what’s on the video as a “deeply personal and compromising interaction,” but, at the same time, “the union does not agree to stipulate for this arbitration to an admission to this activity. It asserts the employer must discharge its legal onus to prove each dismissed employee engaged in activity justifying disciplinary dismissal without adducing into evidence privacy invading covert surveillance video camera footage.
“If the employer cannot discharge its onus without reliance on this video footage, its predicament is a consequence of its flawed investigatory approach from which neither the union nor the board has any responsibility to rescue the employer.”
The city has said if the video is ruled inadmissible, it “will allow the employees to go unsanctioned for egregious workplace misconduct.”
The panel is chaired by lawyer James E. Dorsey and includes retired Vancouver Fire Rescue Services Chief John McKearney, and IAAF vice-president Emeritus Lorne West. Dorsey and McKearney voted to dismiss the union’s application to exclude the video footage from the admissible evidence over the firefighters’ terminations.
“…This surreptitious surveillance as conducted by the employer was both a necessary collection of employee personal information for an investigation of employee misconduct and to manage the employment relationship and a reasonable exercise of management authority in all of the circumstances,” wrote Dorsey and McKearney in the decision.
“It was narrowly focused surveillance based on a genuinely held suspicion with minimal invasion of employee privacy.”
West respected his colleagues’ opinions, but disagreed, and said Lind’s testimony during the hearing was not believable.
“That includes whether or not the file cabinet in question was locked or unlocked,” said West, adding he felt Lind’s testimony was ‘scripted and rehearsed.’
“To be frank, the employer appears to believe they had found grounds to remove an employee, who was a strong leader within the union membership,” said West. “Was it coincidental or was the employer looking for this and then built the back story to fulfill that need?”
The City of Vernon does not comment on personnel matters, and will not provide additional information in this matter as it remains before an arbitration panel.
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