If you have recorded footage showing employee misconduct, can this be used as evidence to take disciplinary action?

An employer who attempted to do this was taken to court by an employee who had his case heard in the Federal Court of Australia (FCA).

While in a few circumstances, employee surveillance and recording may be permissible, this important legal case highlights where the line is.

The case

In Chappell v Griffin Coal Mining Company Pty Ltd (2016), Griffin Coal had employed a security guard to secretly film a worker at its mine site in Western Australia.

The boilermaker, who was also a site union representative, had met with three council representatives to discuss a traffic management plan for a scheduled industrial protest the following day.

A security guard, accompanied with another guard, approached the employee and council representatives and switched on a surveillance camera that was fixed to the middle of his chest.

The group were not made aware that he was recording their activity.

Two of the council representatives then left and the worker continued to talk with a remaining representative, who was also a personal friend.

When the security guard noticed the worker becoming “much more animated” he moved closer to record the conversation.

The footage showed the employee making “adverse” and “colourful” remarks about the company, complaining about the treatment of its employees.

The employee, who was unaware that he had been recorded, later received a letter from the company directing him to attend a meeting regarding allegations of misconduct that arose from that conversation.

It was alleged that he had used disparaging and offensive comments about the company’s owners, as well as profane language to discuss a contractor of the company.

Strict legal boundaries govern workplace surveillance

Legislation in each state and territory largely prohibits the use of surveillance and recording devices to record or monitor persons in particular circumstances.

NSW, ACT and to a limited extent Victoria have specific laws regulating workplace surveillance. The other jurisdictions have general legislation prohibiting use of surveillance devices in certain situations.

In Western Australia, the Surveillance Devices Act 1998 (WA) prohibits individuals from the use of:

• listening devices to record, monitor or listen to private conversations or words spoken in a private conversation: and
• optical surveillance devices to record visually or observe a private activity.

A ‘private conversation’ is defined as any conversation that occurs in circumstances that reasonably suggest the parties involved desire the conversation to be heard only by themselves.

A ‘private activity’ is defined as any activity that occurs in circumstances that reasonably suggest that the parties desire the activity to be observed only by themselves.

If the circumstances suggest that the parties reasonably expect that the activity or conversation might be overheard or observed, then it is not private.

Did the employer obtain its video evidence legally?

Issues raised were:

• whether the recording was made by a person who was not a party to the conversation and if not, whether the conversation was conducted in circumstances that ought to be considered private; and
• if it was made by a party to the conversation, whether it was done with or without the consent of the other parties.

The employer argued that the recording was not a private conversation and said the security guards were not participants in the conversation and due to their proximity, the conversation could reasonably be expected to be overheard. Therefore, the recording of the conversation was lawful.

The employee argued that all parties participated in the conversation (including the security guard recording the conversation). Given that all four parties were participants and no one else was in earshot, it could reasonably be taken to indicate that the parties desired the conversation to be heard only by themselves.

The decision

The FCA stated there was an arguable case that the conversation was a private conversation and in those circumstances, should not have been recorded without each party’s consent.

By not obtaining consent, recording the conversation was a breach of the Surveillance Devices Act 1998 (WA).

The FCA made orders to the effect that the mining company was prevented from taking disciplinary action or terminating the worker’s employment, based on the video footage of him, until the matter could be determined at a full hearing.

Lessons for you

If you seeking to rely on video evidence to discipline an employee for misconduct, you must make sure the footage was obtained lawfully.

Where an employee is unaware they are being recorded, and has a reasonable expectation that the activity or conversation was private, then the recording will likely breach legislation regarding use of surveillance devices.

Employers that have surveillance devices in the workplace should ensure employees are aware they may be recorded when carrying out their duties on the premises.

In NSW and the ACT, there are specific notification requirements regarding workplace surveillance. For video surveillance, employers must also have clearly visible signs at each entrance to the premises to notify persons entering the premises that they may be under surveillance.