Thinking of Surveilling a Suspect Employee? Read This First
Thinking of Surveilling a Suspect Employee?
Read This First
For retailers, surveillance is primarily used to monitor and prove retail crime such as shoplifting, but what about surveillance of your own employees?
We’re living in a digital age, where surveillance in one form or another has almost become ‘the norm’, however employers need to exercise a great deal of care when relying on evidence obtained from workplace surveillance to dismiss an employee even when it seems to be an open-and-shut case.
A recent case in an aged care facility in Mosman (Ms Shahin Tavassoli v Bupa Aged Care Mosman; Ms Shirley Govender v Bupa Aged Care Mosman) is a great example of why evidence must have been obtained legally, and have followed procedural fairness, to stack up in court.
The issue of the recorded evidence
Two nursing home staff – Ms Tavasolli and Ms Govender – were dismissed from their employment with Bupa Aged Care Mosman in November 2016, for allegedly laughing at the recent deaths of two patients, and otherwise interacting with aged care residents in a disrespectful manner that was contrary to the policies of their employer.
A concerned colleague had brought the pair’s behaviour to the attention of their employer – handing over covert recordings he’d made in the days prior.
At the first hearing, Ms Tavassoli won reinstatement to her former job by arguing that she had been forced to resign, although this was overturned on appeal and remitted for re-hearing. Ms Govender’s application was dismissed at the first hearing.
The application of the unfair dismissal principals in each of these cases is itself unremarkable.
But what is worthy of note is the critical question of evidence asked by the Commissioner – whether the covert recordings relied upon to dismiss the employees was legal.
At the commencement of the proceedings, the Commission invited each employee’s representatives to make submissions about whether the covert recordings should be accepted into evidence. While believing that they breached the employees’ privacy, the employees and their representatives formed the view that the recordings assisted their case, and therefore, consented to them being put as evidence.
Notwithstanding this consent, it was a relevant consideration for the Commission in its deliberations that the evidence relied on to dismiss Ms Govender and Ms Tavassoli may not have been lawfully obtained.
“Covert surveillance cannot be used to determine whether employees are simply breaching policy or under-performing.”
When is covert surveillance legal?
Under the Workplace Surveillance Act 2005 (NSW), covert surveillance of employees is prohibited without a covert surveillance authority issued by a magistrate.
A magistrate will only grant authority if there’s reasonable suspicion the employee is breaking the law.
Consequently, covert surveillance cannot be used to determine whether employees are simply breaching policy or under-performing.
The rules are different under the Fair Work Act
Generally, where evidence is obtained unlawfully, it cannot be considered by a court, tribunal or commission, but this isn’t the case under the Fair Work Act, and the Commission is not actually bound by the rules of evidence.
That said, it still tends to follow them, to give some measure of fairness to its decisions around evidence.
Therefore, had the employees’ representatives not consented to the recordings being allowed as evidence, the Commission would still have been able to make the final decision on whether or not to allow them.
What if the commission refused?
If the Commission had refused to accept the recordings, the employer would not have been able to demonstrate its grounds for reaching the conclusions it did about the employees’ conduct, and the case would have failed automatically.
Consequently, the employer’s dismissal would have been legally unjust and unreasonable, because it was informed by unlawfully- obtained information.
Even with the recordings allowed into evidence, the potential they were unlawful was a factor taken into consideration by the Commission when determining whether the dismissal was harsh, unjust or unreasonable.
It should come as no surprise then, that any dismissal propped up by evidence obtained unlawfully may be considered ‘unjust’.
Matters of interpretation
Additionally, this case highlighted that where video evidence is relied upon to demonstrate breaches of more ephemeral aspects of a code of conduct, such as ‘disrespect’, much is open to interpretation.
Even though the employer relied on the video recordings in each case, the Commission drew its own conclusions of what was shown in the recordings distinct from the assertions of the employer. In Ms Tavassoli’s case in particular, the Commission was not convinced the employer’s interpretation was correct.
What this means for you
Before engaging in any form of surveillance, be it video or audio-only, overt or covert, make sure you know and understand your legal obligations.
Generally, there is a similar approach to the use of listening devices in most States and Territories. The use of video surveillance is much less regulated.
All States and Territories have a common prohibition against the use of listening devices to record a private conversation.
The key qualifier? The conversation must be ‘private’.
Generally, the prohibition does not apply where a person may reasonably expect to be overheard – for example, a loud conversation in a crowded shopping centre is unlikely to be considered ‘private’.
Queensland, the ACT, South Australia and Tasmania
Surveillance laws in each of these States and Territories do not specifically address video surveillance.
However, video images which are clear enough to allow a person to be identified (i.e. most security camera systems) can amount to personal information under the Privacy Act 1988 (Cth), as it can then be used to pinpoint an individual’s location at a point in time. As such, records of video surveillance may be subject to regulation under Commonwealth privacy law.
In each of these States or Territories, other elements of criminal law may apply to video recordings made without consent.
Under the Surveillance Devices Act 1999, it is an offence to record a private activity, whether audio or video, without the express or implied consent of those being recorded.
Additionally, employers are expressly prohibited from conducting surveillance in toilets, washrooms, change rooms or lactation rooms, regardless of any express or implied consent.
“Before engaging in any form of surveillance, be it video or audio-only, overt or covert, make sure you know and understand your legal obligations.”
The Surveillance Devices Act 1998 makes it an offence to record video of a person engaged in a private activity without their consent, regardless of whether the person making the recording is a party to the private activity.
It is an offence under the Surveillance Devices Act 2007 (NT) for a person who is not a party to a private activity to record video of that private activity without consent.
In something of a departure from States which regulate video surveillance, it is not an offence to record video of a private activity without the consent of the other party/parties if the recorder is a party to the activity.
New South Wales
In New South Wales, the Surveillance Devices Act 2007 (NSW) does not regulate the use of video surveillance devices generally. Whilst it is an offence to enter premises or a vehicle to ‘plant’ a video surveillance device without the consent of the owner/occupier, the Act does not otherwise regulate the use of video surveillance.
The Crimes Act 1900 (NSW) includes additional offences relating to the recording of private activities, however these require a prosecutor to prove that the recording was made for the purposes of enabling another person (not necessarily the person making the recording) to obtain sexual arousal or sexual gratification.
The above summary is general only, and is in no way a substitute for legal advice tailored to your unique circumstances. Various exemptions, exceptions and defences can apply from State to State, so always make sure that you are familiar with your legal obligations before engaging in electronic surveillance.
Otherwise you could be left in court with no evidence permitted to back you up.
With workplace surveillance being an increasingly common means by which employers monitor the activities of their employees, the lawfulness of this surveillance must always be checked. The National Retail Association’s wholly-owned legal practice, NRA Legal, specialises in workplace laws and can provide assistance, tailored to your needs.
As the National Retail Association’s Senior Workplace Advisor and Lawyer, Alexander Millman provides advice and representation to a collective network of more than 19,000 retail, fast food and quick service outlets nationwide.
This includes representing members and providing expert guidance in the modern award review process (including appearances before the Full Bench of the Fair Work Commission) and individually in discrete cases before industrial tribunals.
While specialising in the complexities of employment law, Mr Millman also advises and represents members across general commercial litigation in various State courts.
1800 738 245