Video of sexual relations can be used at grievance in fire department firings

VANCOUVER — Two employees of the fire department in Vernon, B.C., are battling to keep their jobs after a videotape showed them having sexual relations in the interim fire chief’s office.

The pair, who are not named, were fired two days after the incident earlier this year, but their union is grieving the dismissals.

It argued the camera was hidden and its footage amounts to “an illegal collection of personal information” that should not be used against the employees.

“The union does not deny the two employees engaged in the activity recorded in the footage, which the union characterizes as ‘a deeply personal and compromising interaction,’ ” says the decision.

But it says the union did not agree to an admission of the activity as part of the arbitration process, asserting the employer has a legal onus to prove each employee engaged in activity that justified their firing.

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The camera had been installed several months earlier after David Lind, who was the interim chief at the time, became concerned that someone might be accessing his locked file cabinet, which contained sensitive staffing and budget documents.

Video didn’t show a staff member accessing the file cabinet and the union applied to have the pictures excluded as evidence in the termination proceedings, but an arbitration ruling issued on Oct. 30 disagrees.

A majority ruling by two of the three arbitration panel members found the “surreptitious surveillance” was both necessary as part of an investigation of alleged employee misconduct and a “reasonable exercise of management authority.”

Union grievances of the firings were scheduled to be held last week, with the video permitted as evidence.

The city said in a news release on Friday that the case involved a firefighter and another employee of the fire service.

“Because this incident is before an arbitration panel, no additional information will be made available from the city at this time,” it said.

In reaching their decision, arbitration panel chair James Dorsey and employer nominee John McKearney found the video footage was not a serious invasion of privacy. 

“The brief, fleeting loss of privacy by individual firefighters … was at the lower end of any range of seriousness of invasion of privacy at work,” the decision says.

But Lorne West, the union nominee on the panel, wrote in a dissenting opinion that consideration is needed of the troubled labour management atmosphere in the fire department, where Lind had arrived as part of a complete turnover of department leadership barely a year earlier.

The decision says when Lind was hired, he was “told there were relationship challenges” in the department.

“The explicit message was to be cautious trusting union leadership,” it says.

When Lind found the lock of his file cabinet in the unlocked position after he was sure he locked it, the arbitration decision says he and the deputy chief “speculated the most likely culprit was a union representative.”

It says Lind and the deputy chief decided to install camera surveillance.

The panel says it shares “some of the union’s concerns” about Lind’s testimony, but West goes further, writing it was “not believable.”

“If there is no truth to interim fire Chief Lind’s testimony then there can be no justification for the video camera installation. Therefore, the video footage should not be admissible,” wrote West. 

He also says the employer’s efforts throughout the hearing were “laser focused” on one of the two employees.

“The employee that is clearly the focus of the employer in this matter is a strong leader within the fire department and the last of the leadership to be removed and replaced. … Is it coincidental?”

The Canadian Press