The grievor was terminated from his position on the basis of an alleged culminating incident -- the employer alleged that he had dishonestly misrepresented his medical condition in order to claim injury-on-duty benefits -- the grievor slipped at work and suffered a back injury -- the grievor came in person to the workplace to obtain medical forms and was observed by the employer to walk, climb stairs and rise from a seated position without assistance and in a normal fashion, despite the fact that his doctor’s notes indicated that the injury was a serious one -- the employer reviewed the grievor’s work-related injuries files and felt that they indicated that he had not, in the past, been entirely truthful about his work restrictions -- the grievor’s doctor indicated that modified duties were not an option but did indicate that the employer could contact him with respect to work or rehabilitation assistance -- the grievor refused to attend a one-day scanner training session, stating that his back was sore -- it was at this point that the employer reviewed the grievor’s entire file, including his disciplinary history, and ordered video surveillance -- the employer did not contact the grievor’s doctor -- the adjudicator found that the evidence was arguably relevant but should be excluded -- the adjudicator found that the expectation of privacy in the workplace has its origins in both the Canadian Charter of Rights and Freedoms and management rights -- the “reasonableness” test was held to be the most appropriate test for the admissibility of videotape evidence -- video surveillance was held to be extremely invasive and required reasonable and probable cause to justify conducting it -- the test is an objective one -- the reasonableness test sets out two requirements that the employer must meet before the evidence is considered admissible and the first of those is whether or not, in all of the circumstances, it was reasonable to undertake the surveillance -- having a legitimate basis for suspicion is not necessarily the same thing as establishing reasonable grounds to conduct surveillance -- while the employer had reason for suspicion, that suspicion did not immediately justify surveillance -- the employer is not required to establish that it exhausted all of the alternative means of confirming its suspicions but it must explain why a readily available and less intrusive method could not have accomplished the same goal -- the employer had another avenue open to it and could have contacted the grievor’s doctor for more information -- the employer provided no evidence to explain why it could not have called the grievor’s doctor prior to ordering surveillance -- given this decision, the adjudicator held that he did not need to rule on the second requirement of the reasonableness test, being whether or not the surveillance was conducted in a  reasonable manner -- surveillance was therefore unreasonable -- surveillance videotape and the report based upon the surveillance are not admissible.

Motion to exclude allowed.