Proctor : October 2017
24 PROCTOR | October 2017 Watching the watchers Are you undertaking workplace surveillance appropriately? Workplace surveillance now comes in limitless forms, thanks to rapid advances in technology. Capturing and storing data has never been easier – which is of great benefit across all areas of the workplace – but it’s important to remember that the fundamental principles around privacy, data retention and employee rights apply to workplace surveillance, whatever form it may take. Technology has also leapt well beyond the legislation that regulates surveillance in Queensland, however recent case law is proving that workplaces can find themselves in the spotlight if they don’t manage their surveillance activities in line with employee rights. Know what you are getting into Workplace surveillance can range from data monitoring (for example, email, phone and internet history collection), optical and auditory recordings (using a smartphone) to sophisticated GPS tracking mechanisms, drones and biological surveillance (for example, drug and alcohol testing, and fingerprint detection). Surveillance data can be a valuable source of objective, unbiased evidence when investigating allegations of workplace misconduct and can help to improve safety, training, security and production outcomes. But it’s crucial for employers to be aware of the risks to worker morale, privacy and trust if surveillance is not implemented and managed carefully. This is especially the case as work and home life increasingly overlap. Overview of the laws The Invasion of Privacy Act 1971 (Qld) regulates surveillance1 in Queensland and is explicit about the use of listening devices to covertly overhear, record, monitor or listen to private conversations. The Act does not, however, address other common forms of surveillance, such as optical recordings or GPS tracking, nor does it specifically address workplace surveillance. By comparison, other states have created specific legislation to regulate workplace surveillance – Workplace Surveillance Act 2005 in New South Wales and the Workplace Privacy Act 2011 in the Australian Capital Territory. Both Acts regulate beyond just listening devices and include, for example, restrictions on computer surveillance (except when covered by a clear workplace policy). Victoria has also integrated workplace privacy provisions into its broader Surveillance Devices Act 1999 (Vic.).2 The variation in legislation can present challenges for companies working across jurisdictions, especially when the disclosure and retention requirements are more onerous in some states than others, or for national employers with single integrated IT systems. Surveillance and the employment relationship While Queensland has little formal regulation around workplace surveillance, other contractual and regulatory protections applicable to the general employment relationship still apply. Several recent cases highlight when and how surveillance can lawfully be relied on during disciplinary proceedings and the importance of affording employees their existing legal rights under the employment relationship. Security and theft In Mulhall v Direct Freight,3 CCTV footage was relied on as evidence to dismiss a delivery driver for “serious misconduct” on the basis that he had allegedly stolen a laptop. The CCTV footage showed the driver was involved in “suspicious activity” while loading the relevant order. It showed him repeatedly looking at the camera and unnecessarily dragging other boxes to hide the one that went missing. The investigators believed they could identify the missing box from the footage due to its size and a distinct tape used. The employee brought an unfair dismissal claim against his employer, claiming that the box could not be identified as the footage was too poor to provide a clear image. He also alleged he was not afforded procedural fairness because he was not given an opportunity to view and respond to the CCTV footage before he was terminated. The employer attempted to show the employee the footage, but he declined to attend due to illness and provided a medical certificate. The Fair Work Commission (FWC) rejected the company’s arguments that the surveillance footage proved the worker had engaged in serious misconduct, finding that the so-called “suspicious behaviour” was speculative and the employee should have been given an opportunity to view the footage first. The FWC found that the dismissal was unjust and unreasonable, and the employee was awarded $25,468.13 in damages. Social media The appropriateness of monitoring and intervening in an employee’s personal social media accounts is an increasingly common challenge for workplaces. In Clint Remmert v Broken Hill4 an employer discovered a Facebook post by an employee that, in their view, mocked the employee’s work supervisor. The employee was dismissed and he subsequently brought an unfair dismissal claim against the company. He argued that there was no valid reason to dismiss him because he was not at work when he posted the comment and he did not name his supervisor in the post. The FWC found there was a “relevant and sufficient connection” between the employee’s out-of-hours conduct and employment relationship. Many of the employee’s Facebook friends were also employees of the company and his comments were made in relation to a photo taken at the workplace. Further, it was found that the employee’s comments were either knowingly directed at his supervisor, or at best, the employee was aware that others would understand the inference. The employer relied on its social media policy (SMP), which prohibited workers from using any platforms to discriminate, harass, bully or victimise other employees. The FWC held that because the employee breached the SMP and was on his final warning for inappropriate conduct, there was a valid reason for his dismissal. However, the FWC did not accept that the employee had been afforded the requisite procedural fairness because he was not told about a confidential report relevant to the investigation. Further, the employee had not been fully briefed on the SMP or assessed to ensure he understood it. The employer was ordered to pay the employee $28,000 in compensation.