Constructive dismissal is a tricky legal proposition to assert successfully. The onus lies upon the individual asserting that he or she was constructively dismissed, to establish, on a balance of probability, the constructive dismissal, amounting to a breach of the employment contract.
Essentially, a constructive dismissal occurs when two elements are established. First, that there was a change or changes to the existing terms and conditions of the individual’s employment “contract”, which were not otherwise accepted or condoned by the employee. Second, that the change or changes in the existing terms and conditions of employment were of a fundamental nature. Essentially, an employer cannot come along in the midst of the employment relationship and unilaterally and fundamentally change the terms of the existing deal. If it chooses to do so, the affected employee is at liberty to assert that his or her employment has been “constructively terminated”. If proven, the result is the same as if the employer had terminated the individual’s employment, without cause, and such a finding gives rise to an award of appropriate compensation, in lieu of notice.
The notion of constructive dismissal can apply in a variety of circumstances. Historically, and perhaps more typically, constructive dismissal cases have dealt with changes to an individual’s compensation, material alterations of duties and responsibilities and geographic relocations, to name a few. However, recently, the Ontario courts have arguably extended the concept to address a set of circumstances where an individual’s privacy rights were impacted.
In Colwell v. Cornerstone Properties Inc., an employer installed a surveillance camera, to address an undisputed theft problem, in the affected employee’s office. The employee discovered the video camera recording images in her office surreptitiously after about nine months and quit, alleging that her employment had been constructively dismissed.
The employer had installed the camera to address an undisputed theft problem, but did not suspect the plaintiff. The only reason it put forward for having installed the camera in her office was that it thought the suspects would go to the plaintiff’s office to “review the loot”, a suggestion the court said was “preposterous.” The plaintiff appeared to have discovered the camera when she visited a supervisor’s office and saw a live feed of her office, raising a serious question about the use and security of the images being recorded.
The employee alleged a fundamental breach of an express or implied term of her employment contract, a relationship, based upon the privacy violation. The court accepted the proposition amounted to a constructive dismissal and found in favour of the employee who, superficially and certainly from the employer’s perspective, had quit. Damages were awarded.
This case presents an interesting extension of the concept of constructive dismissal into new territory involving the intersection between technology and employment rights.
Construction of dismissal or not I believe it is an invasion of privacy to spy with a webcam. Unless an employee has agreed to work on cam it is a personal invasion.
I’ve heard that our computers and phones are bugged and that the bosses log everything we do and say. I like my job, but this level of scrutiny gives me the heeby jeebies. Makes me want to leave.
I worked for a place that had 2 fake C.C. camera’s in the hall, latter i found out that there we’re 10 pin hole C.C. camera’s on the floor, one just outside of the washrooms.
If those cameras were angled up from the floor, directly or indirectly… call the police. That isn’t invasion of privacy, that falls under criminal mis-conduct.
I worked for the Ministry of Labour has a Public INformation OFficer…. the privacy issue is not part of our provincial code but part of federal code of privacy laws…. Employers are permitted to install video cameras to secure their property on the one condition that they must inform all employees that video surveillance is in effect. To install cameras without the employees knowledge is truly the infraction under federal code.
An American financial Company tried to dismiss a long standing employee one time for leaving early from her desk to go home. Her duties was to stay at the office later to serve Vancouver clients… This employee challenged the dismissal and she won when the courts found out the reason for her leaving early by 1/2 hour was because her house was on fire. Video Surveillance doesn’t always tell the truth… we forget that the best type of management is the one that earns the trust of their employees. Being a former Director I understand the need for productivity and efficiency… but I’ve learned over the years that Micro Management styles don’t work… people are not children… and the best type of companies are the ones that work hard at earning the trust of their employees. You heard me Managers… it’s your job to earn the trust of your employees… once you’ve accomplished this your employees will work harder and with more loyalty. Be honest with your employees… neve!
r hide objectives and company policies from them…. because in actuality they work for the company’s profitability… thus leaving employees in the dark about your motives… creating an us and them attitude… will never succeed in business…. you will have turnaround … turnaround… and more turnaround… apathy and bitter employees who don’t give a damn about the company.
Peace
Jean-Claude
Understand employers have the right to protect their premises but this sort of thing goes to far.
How is what they did any different than that pervert in Toronto who used his cell phone camera to secretly do up skirt shots of women and broadcast them on the web?
The law is clear about people having to be informed they will be on camera.
Period.
There is a telemarket office in winnipeg where the employer will rush you to read the paper you got to sing then if you tell them you want time to read it they will dismiss you. After that my friend realize he had sign a paper where they employer has the right to monitor him over a web cam installed in his pc. And if he would do something “wrong” they would yell at him infromt of everyone. How this keeps going on is beyond me.
Wow! I can’t believe the audacity of some employers! To install surveillance camera’s in an employees work station WITHOUT their prior knowledge to me, was an invasion of privacy. What was this particular employer thinking of? Sure he got ‘away’ with it for several months, but come on, if you are planning on doing something like that, then the employee should be made aware of it first. He/she should have been given the opportunity to either ‘agree’ to it or not. If it was okay then fine…if not then you would need to leave that company…plain & simple.
Personally speaking I WOULD NOT agree with it…how comfortable would YOU feel if your EVERY move was being recorded? Not only that, especially being a woman…maybe indiscreetly? ( or so you thought ha ha ha) you had to re-adjust your bra strap…or re-arrange your stockings etc….whilst in your office? And…NOW it is ALL on tape!
All I can say is it sure looks good with the end result regarding that employer…that employer… once in court… now looks like an IDIOT! By doing what he did and acting this way (in his defense of course)…not only has caused him a big headache… AND…MORE $$$$$ in the long run!
Needless to say, I’m very happy with the outcome…that’s for sure…good for that employee to take him to court! I couldn’t stop laughing whilst I was reading this… I actually LMAO!!!!
Today there is no policy in place for work dismissal. If a company wants to get rid of you they will, eventhou it says you will get 3 warnings you never get them. Calgary doesn’t have any policy for wrong dismissal. Companies just get rid of you. Oh sure you can go to a lawyer but your spending more on a lawyer than just walking away and companies know this so they are not bothered by it. Even if you didn’t do anything they will say there is a work shortage and even if that’s not tru they just lay you off.
Invasion of privacy is a no no. This will just result to dispute between the employee and employer. I don’t know but in our country i have never encountered the contract would says they need to install cam for any purpose. That is why dispute from management and labor has due process.
Even today, in my place of employment, a direct video feed can be “targeted” on any store, by the area manager on up in the higher echelons of the company . It makes one feel like the fish in the fishbowl, or that “Big Brother/Big Sister is watching you”. Comments were once directed at myself about being on the phone with another store – for half an hour. It was all work related yet I had to defend myself, unnecessarily. I was “assumed” guilty immediately. Co-incidentally, it was an HR issue that was the point of discussion.
My questions is in regards to employment records. The Cdn Gov’t Website states that only employers are privy to these records. So then how does a person defend themselves when dismissed for no apparent reason, and yet can’t seem to find a job in a similar industry to which they have worked.
Employers will often get rid of workers that they over hire. To propogate this they will utilize some “mistake” made by employees to fire them out of the door. When the firing was unjust because people in the workplace are promised extra work to get rid of said employee how is it the person can fight back if they can’t even see what employers are writing their own employment record.
What is the purpose of installing a camera anyways? Theft, time, efficiency? If it’s to fire your employee for leaving half an hour early that’s ridiculous. Is that even grounds for dismissal? I personally believe in flexibility if you trust you employee’s to get the work done the work will get done. For example if I need to be somewhere at 5:00 and I need to leave at 4:00 I will skip my lunch, work from 9:00-4:00 get the work done and leave. Where’s the problem in that?
I deal with electronics daily as a fire alarm tech. I going thru ceilings see things unbelievabe however none of my business. Elevators corridors rooms common and private have cctv. Beyond me these are means to evaluate suspicion and suspicious. I am not management but I do believe cctv has a place to scrutinize not to supervise. CCTV should be used to monitor behaviour not supervise it. The question is how far do we go with trust when the scrutinizer is monitoring or evaluating. Large corporate buildings have security that monitor and evaluate especially in large manufacturing and office buildings. We need cctv to protect the innocent and capture perpetrators for their behaviour to the unsuspecting.
well accordind to Jean-Claude, it is illigal but in my opinion it should not be its not your property or home, when you go out of your home you are in the public and have no expectation to privacy, there are cameras in malls, streets, casinos, stores, cabs, police cars and many other places of business. business have the right to protect their property and business. if you are doing nothing wrong you should have no problem
this is just my opinion
As Jean-Claude said, as long as the employer alerts the employee to camera’s and video surveillance it is up to the employee to continue working in that environment. Where I work every corner of the business is under video surveillance, everything is caught on camera. But that is something as the team leaders, we inform new employees of, and we even notify them where they are, and the purpose of their existence. It’s the sneaky round-about ways that are infringing upon peoples rights. Privacy at work is something we all should have, but to a degree. However knowing this beforehand allows potential employees to understand limited privacy. Especially when you work in public works, there is little privacy to ensure that all tax and worker boards are able to see our operations. So in our business we must be as transparent as possible to avoid any kind of government repercussions.
Always ask your new employers if you will be working under any kind of surveillance. Are the phones recording everything, are you under cameras, do they have access to everything you input on a company computer? As long as you know before hand, you can make the choice of working or not working for the company. They are legally obliged to inform you of these practices, and only when they lie or do not inform you are you eligible for compensation. That is when it becomes an infringement on your civil liberties.
And on a final note, just as a means to protect yourselves. I would recommend against doing anything personal on work computers. Do not use sites such as Facebook, Myspace, or private e-mails, as you do not know who may or may not have key loggers, or is observing your activities. This is a way to protect you and your families privacy.
I find the article very interesting and more so, the comments. I have worked at a retail home furnishing store for five years and knew that there were several surveillance camera all other the store to spy on coworkers. We, the coworkers, were never informed of this but just knew that they were there.
Now, I understand that it is the employer’s right to informed us, the coworkers.
Great information! I have just learnt something new.
my school use a system software that spy on the users. when we sign to take the course there was nowhere to see a software that would spy on the students.
guess in 2010 your “lovely govt” (sarcasm here) whant to prepare the masses to GET USE TO IT. about being spied on non-stop. terrorism…. spies… ITS BS. MF BS.
all these new laws to so call protect us are here to PROTECT AND SERVE THE GODDAMN COORPORATIONS OF AMERICA. To them we are the TERRORISTS.
just like in nazi germany. the terrorist is the new jew. if your not quick enough to get it then you will probably never get it….
Employer’s are so nosey these days. The fact that they tell Writers or Bloggers about our situations, that are most likely NOT funny to us just for a laugh, is another reason why I’ll never give an Employer my reason.
My mother’s friend took our 2nd pair of house keys one night by accident. My mother took her set of keys to work, not realizing I didn’t have my own set to lock the door. I ended up having to call in because I wasn’t leaving my house unlocked for someone to steal anything. I’d rather risk a day of $10 an hour than all of my furniture or valuables. Nice to know that Employers don’t believe that reason… as if that would stop me from saying it again if I ever had to.
Mona, I work as a security guard and there are cameras monitoring my every move while at work. I was made fully aware of the cameras in advance so I just learned to behave myself at work.
While it is a nuisance, what I really liked is that when some false accusations that could result in me and my team getting fired were made, the surveillance footage was able to prove our innocence. The person making the accusations, hoping to see us in trouble, instead got herself in trouble.
Yes, it can give you a creepy feeling that you’re being watched but then, the watcher can also be your personal witness and alibi when accused.
Jean Claude has an EXCELLENT answer to this whole thing… Nice to see that some Canadians still have guts. I live in a country where my grandfather died in a war for us to literally sit here and argue over such minor things – i.e. that TTC driver in Toronto that you people LAMBASTED with your lies about you were worried about your “safety,” meanwhile as soon as you get OFF that TTC bus, what do you do? That’s right, you pick up YOUR cellphones and drive off into the sunset because YOUR schedule is just as busy as the TTC drivers’…
I just find it funny how when surveillance affects someone ELSE, directly, the majority of Torontonians don’t care. However, use that same logic on someone working at THEIR desk and they get scared and vote “NO” towards it and call it an “invasion of privacy,” which it is, 100%, but only when it affect YOU. You people with your cellphones are just cops/rats. You literally go around, cowardly I might add, to look for people that aren’t doing “the right thing” and you call the cops RIGHT AWAY like you’re going to be a hero or something… You all called to have this man hanged, basically and used hideous arguments like “What if my kid was on that bus and it got into an accident?” Listen, these people are 110% PROFESSIONAL drivers. If you people can drive around talking on your cellphones, what makes you think that a man or woman that does the job for a LIVING cannot exercise caution whilst talking on the phone???!!! It’s really not that hard to do. And you people don’t realize that it’s a tax grab for the police. 90% of you are in for a HUGE SHOCK when you find out that the fine for not wearing a seat belt is $240!!!!!!!!!!!!!!!!!!!!!!! That is highway robbery, to put it simply.
And, a $500 fine for talking on a freakin’ cellphone? Well, guess what. These are the people you voted into office so this is what you’re gonna get. Highest gas prices in history, highest insurance rates in history and now a week’s paycheck for most people just for not wearing a seat belt. But I realize that you have been pumped with tonnes of comebacks like “What if that was YOUR family?” So you’ve been programmed to accept ANY consequence. No wonder why Harper wants to build super jails.