Cameras could deter workplace incidents

A:
On June 15, 2010, Bill 168, “An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters” came into force in Ontario. It amends the Occupational Health and Safety Act (OHSA) to include definitions of workplace violence and workplace harassment.

Specifically, subsection 1(1) of OHSA is amended by adding the following definitions:

“Workplace harassment”
This means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome

“Workplace violence” means
(a)    the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
(b)    an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to a worker,
(c)     a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

The amendments to OHSA also impose new requirements for employers, as follows:
1.     Employers will be required to develop written policies with respect to both workplace violence and workplace harassment which must be reviewed annually.
2.     Employers must develop and maintain programs to implement the policies and to deal with incidents and complaints of workplace violence and harassment.
3.     Employers must assess the risk of workplace violence that may arise from the nature of the workplace, the type of work or the conditions of work. The program developed to implement the workplace violence policy must include measures and procedures to control the risks identified in the assessment.
4.     An employer must take every reasonable precaution to protect the worker, when the employer becomes aware or ought reasonably to be aware, that domestic violence would likely expose a worker to physical injury in the workplace.
5.     The employer must provide a worker with information and instruction on the contents of the workplace violence policy and program and the workplace harassment policy and program.

So where does CCTV fit into the above? Well, “measures and procedures to control the risks identified ”¦” and “reasonable precaution to protect the worker ”¦” could include the installation and operation of CCTV equipment to monitor the workplace and protect workers. Especially where the worker is dealing is dealing with the general public.

In a recent publication entitled “Developing Workplace Violence and Harassment Policies and Programs: A Toolbox” the Occupational Health and Safety Council of Ontario suggests that CCTV or “video surveillance be used with appropriate signage posted to inform the public of it” as a control mechanism to reduce the risk of workplace violence.1  Presumably, the rationale is that the presence of CCTV/video surveillance cameras would act as a deterrent.

In addition, the use of “live monitored” cameras is recommended in areas where workers are handling cash, dealing with unstable or volatile persons, working alone or in small numbers, working in high crime areas, or securing/protecting valuable goods.

Where a dispute rises between a worker and a member of the general public, credibility is often in issue. Who said, or did, what, becomes an issue. Video of the interaction may answer many questions as to what happened and in what sequence. For example, in a 2008 labour arbitration entitled Toronto Transit Commission v. A.T.U., Local 113, the employee grieved the termination of his employment on the grounds that the employer (TTC) had no just cause for firing him. 2 It was alleged by a TTC rider that the employee, a station collector (i.e., booth operator), had verbally abused and threatened the rider.

“The ticket booth is monitored at all material times by video surveillance cameras. While the detail may differ depending on the placement and orientation of the particular camera, typically, cameras would record the collector in the performance of his duties, as well as customers passing by the Collector’s booth and going through the turnstile.” 3
Unfortunately, neither the employer or his union had access to the videotape because the videotape of the incident was reused as more than 72 hours had elapsed from the time of the incident.

Presumably, the videotape would have shown any altercation between the collector and the rider. The collector “emphatically denied that he had had a confrontation with a customer and asserted that the tape would exonerate him.  Given the griever’s emphatic denial that there had been no exchange, let alone an altercation, with a customer that day, ”¦ if the tape had revealed any sort of exchange with a customer, the union might have doubted the griever’s credibility and reconsidered its decision to proceed to arbitration with his grievance. 4

What is clear is that CCTV and video surveillance have an important role to play in the prevention and investigation of workplace violence and workplace harassment. By specifically legislating in this area the government is sending a clear message to employers that they are responsible for preventing workplace violence and workplace harassment.

Those entrusted with security in the workplace should use this legislation as a reason and justification for increased use of CCTV cameras and video surveillance — with the appropriate signage, notices, and privacy safeguards — in the workplace.  Compliance with the law is always a good reason for using video surveillance.

Elliott Goldstein, B.A., LL.B. is a Woodbridge, Ont.-based lawyer. elgold@rogers.com

1 See http://www.labour.gov.on.ca/english/hs/ for a list of publications.
2 2008 CarswellOnt 6646, 173 L.A.C. (4th) 97.
3 Ibid.
4 Ibid