On 4 February 2019, the Labour Tribunal of Hainaut (Charleroi Division) found that the employer was entitled to use images from a third party’s hidden camera to justify the dismissal of a worker for serious misconduct.
The worker was the caretaker of a building in which trade fairs are held. One night, thefts were committed at various exhibition stands. The owner of an exhibition stand had placed a camera that, during that night, filmed the worker who was nearby and wasn’t aware of this camera’s existence. Relying on these images, the employer dismissed the worker for theft. The dismissed worker, however, complained of a violation of his privacy and argued that these images were not admissible. He also contested the theft by explaining his presence on site to take out the garbage bags.
The Tribunal ruled that, even if the images were not lawfully obtained, they shouldn’t be per se disregarded pursuant to the so-called Antigone case law. Indeed, such evidence could only be rejected if it has violated a formality required under penalty of nullity, if it is unreliable, or if the worker’s right to a fair trial has been violated. However, in the current case, compliance with the Collective Bargaining Agreement n° 68 on the protection of privacy of workers with regard to CCTV at the workplace (whose requirements should have been fulfilled, pursuant to the Tribunal) is not prescribed under penalty of nullity; the camera images are reliable and the worker has had the opportunity to view and comment them, which is in accordance with his right to a fair trial. Last but not least, the Tribunal found that the worker’s explanations were not credible.
The judgment (RG 17/2779/A) can be found on http://www.terralaboris.be