To catch a thief: Surveillance at work

There is a thief afoot in the Ai Group office – a sticky-fingered, sweet-toothed choc-aholic who clearly can’t resist temptation.

The women at the workstations neighbouring the Blog Newsdesk have clearly had enough: this morning, an entire family-size block of Cadbury Picnic chocolate – yet to be sampled – has disappeared overnight. Packets of fund-raising Easter eggs have become an endangered species.

In pondering a range of suspects, our thoughts have quickly turned to covert activities. Laptop computers sit ready, with webcams primed to catch our thief in the act.

Certainly, in an era when most of us carry a veritable mini-television-studio in our back pockets, private investigation of this type could hardly be more simple – and it inevitably has entered the calculations of both employees and employers in situations far more serious than a case of disappearing chocolate.

In Australian workplaces, however, the law is much less cooperative than the technology. Every state and territory has its own rules when it comes to electronic surveillance – although only NSW and the ACT have privacy legislation specific to the workplace. Elsewhere, laws apply generally, whether you’re at your desk or at a bar.

Victoria’s Surveillance Devices Act 1999 provides a typical example: a person is prohibited from using any device to record a private conversation to which the person is not a party, unless the person has the consent (express or implied) of each of the parties to the conversation. The maximum penalty for flouting the law is a substantial fine – and two years in prison.

And regardless of the law-abiding nature of the original recording, actually communicating or publishing its content is another thing altogether – consent from all, for that specific purpose, will again be required.

In Western Australia, the requirement to obtain consent of all parties to a recorded conversation extends to situations when the person making the recording is one of the parties.

As you would expect, cases of secret recordings have been popping up more regularly at the Fair Work Commission in recent years, with the employee tending to be the one controlling the device.

The issues up for debate most frequently concern: 1) the admissibility of secret recordings as evidence in unfair dismissal applications; and 2) whether the making of such covert recordings by an employee is, in itself, a valid and fair reason for dismissal.

On the first point, the Commission is not bound by the ordinary rules of evidence, so the actual illegality of any recording under question does not strictly preclude it from being considered. The Commission’s attitude in this regard is, however, typified by the words of Commissioner Nick Wilson in an August 2013 South Australian case:

“While the Fair Work Commission is not bound by the rules of evidence and procedure, that is not to say the Commission should not have regard to such rules in making its decisions, and for good reason.”

The Commissioner opted not to listen to secret recordings that the employee contended would prove the falsity of her former employer’s evidence.

On the second point, the message from the Fair Work Commission is even more pronounced. Consider the words of Deputy President Sams in the case of a Gold Coast employer’s unfair dismissal of one of its supervisors; it later emerged he’d secretly taped discussions with his managers.

Despite the finding that the supervisor’s termination had been devoid of “any modicum of procedural fairness”, Deputy President Sams refused to reinstate him:

“In my view, there could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with management.

“I consider such an act to be well outside the normal working environment and contrary to the well understood necessity for trust and fidelity in the relationship between employee and employer.”

The custodians of that trust and fidelity, one must assume, reside equally on both sides of the workplace divide.

If this isn’t enough to chasten those of us seeking to solve mysteries of missing confectionery, consider the conditions that would apply to our proposed surveillance under NSW law:

Under the Workplace Surveillance Act 2005, written (or emailed) notice must be provided to employees at least 14 days prior to any surveillance commencing.

What’s more, cameras used for surveillance are required to be clearly visible in the place where the surveillance is taking place. Signs, clearly visible at each entrance, must also notify people that they may be under surveillance.

Perhaps we might be better served to secure our chocolate under lock and key. Or maybe just go on a diet.

Have you ever considered implementing any form of surveillance in your workplace? Or have you suspected employees of secretly recording any meetings at work? Do you have any policies or procedures that address this risk? Share your thoughts and questions below.

Should you require any advice on this subject, please contact Ai Group Workplace Lawyers.

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Graham Turner is the former Editor of Ai Group's Industry magazine, which ceased publication in 2014. He now edits (and moderates) this Blog, together with Ai Group's weekly Email newsletter.

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