Workplace surveillance and improperly obtained evidence

This article was first published in the November 2019 edition of the Law Society of NSW Journal. 

Ever get the feeling you’re being watched? Chances are, you are. The proliferation of surveillance devices in public places doesn’t stop at the office door. 

According to a recent story in The Guardian, workplace surveillance is on the rise and many of us are either unaware of it or are simply resigned to it.[1]

Unsurprisingly, the use of surveillance and covert recordings has featured in a number of workplace matters recently. Both employers and employees are increasingly using recordings to justify their own actions, through the use of sophisticated surveillance tools, or the recording capability of smart phones.

Unfortunately, there is the small matter of whether the recordings were lawfully obtained. Employers often aren’t totally across all the requirements for lawful surveillance of employees in the workplace, and employees are similarly unaware of the legal consequences when purporting to protect their own interests by recording discussions with colleagues.

Recent decisions of the Fair Work Commission (FWC) have confirmed that surveillance evidence and recordings can be used in proceedings, even if they were unlawfully obtained. However, this is at the discretion of the FWC, and parties must still overcome certain hurdles when attempting to adduce such evidence.

Legislative requirements

In NSW, workplace surveillance is primarily regulated by the Workplace Surveillance Act 2005 (NSW) (WS Act). The WS Act requires that an employer provide an employee with at least 14 days’ written notice before commencing workplace surveillance, or a lesser period if the employee agrees. The notice must provide details as to the specific nature and scope of the surveillance.

The WS Act also requires that computer surveillance must only be carried out in accordance with a policy of the employer, and camera surveillance must not be carried out unless the cameras are clearly visible and there are signs at each entrance to the work premises stating that camera surveillance is operational.

Surveillance is also taken to comply with the requirements of the WS Act if the employee has agreed to the surveillance at the premises for a purpose other than the surveillance of employees, and the surveillance in question is carried out in accordance with that agreement.

There are also widespread prohibitions on the installation and use of surveillance devices (listening, optical, tracking or data) contained in the Surveillance Devices Act 2007 (NSW) (SD Act) that apply to all individuals and corporations.

The maximum penalty for non-compliance with the WS Act is $55,000. More significant penalties apply under the SD Act, with most offences carrying a maximum penalty of $550,000 (for corporations) and $110,000 (for individuals) and/or five years imprisonment.

Reliance by an employer

This question of whether an employer could rely upon improperly obtained surveillance material as evidence in defending an unfair dismissal application was extensively considered by a Full Bench of the FWC in Krav Maga Defence Institute Pty Ltd t/a KMDI v Markovitch [2019] FWCFB 4258.

In Krav Maga, the employer used cameras at its martial arts gym to observe its employee, Mr Markovitch. The CCTV footage showed Mr Markovitch using his phone on numerous occasions when he was expected to be supervising his classes. The employer concluded he was not providing the requisite supervision to students, in breach of the employer’s policies, and he was summarily dismissed. Mr Markovitch was aware of the cameras, however the employer had not provided 14 days’ notice of the camera surveillance and there were no signs advising of the surveillance.

At first instance, the FWC determined that the CCTV evidence had not been obtained in accordance with the requirements of the WS Act and was therefore inadmissible. However, the Full Bench overturned the first instance decision, upholding all grounds of the employer’s appeal.

The Full Bench accepted there was sufficient evidence to support the employer’s submission that the surveillance had occurred with the agreement of the employee. The Full Bench held the agreement did not need to be in writing and could be implied. In this case, it was implied as Mr Markovitch had been involved in the installation of the cameras, authorised the payment for the installation of the cameras and had not objected to or complained about the cameras.

The Full Bench also accepted the surveillance was for a purpose other than the surveillance of employees, namely the protection of employees and students.

Of more general consequence, was that the finding that even if the CCTV footage was obtained improperly, it was still able to be admitted in evidence. The Full Bench relied on s 138(3) of the Evidence Act 1995 (Cth) which sets out a number of criteria which a court must take into account when determining the admissibility of improperly or unlawfully obtained evidence:

• the probative value of the evidence;
• the importance of the evidence;
• the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding;
• the gravity of the impropriety or contravention;
• whether the impropriety or contravention was deliberate or reckless; and
• the difficulty (if any) of obtaining the evidence without the impropriety or contravention.

The Full Bench confirmed that it is not bound by the rules of evidence, but that does not mean the rules are irrelevant. In this context, the Full Bench opined that it was plainly appropriate for the FWC to adopt the provisions of s 138(3), even if there was doubt about whether the CCTV footage was obtained illegally.

The Full Bench quashed the first instance decision and remitted the matter for further hearing, including the question of whether the CCTV footage should be admitted into evidence as a matter of discretion ‘in accordance with our conclusions in the appeal’.

Reliance by an employee

Although the majority of employment cases involve employer surveillance of employees, it is increasingly common to be faced with covert recordings by employees to support their version of events.

A recent example was in Kelly Walker (No. 2) [2019] FWC 4862. In this case, Ms Walker unsuccessfully attempted to have secret recordings of meetings with colleagues admitted as evidence in her application for an order to stop bullying, including her allegations of breach of various pieces of legislation such as the Fair Work Act 2009 (Cth), work health and safety legislation and whistleblowing laws. Ms Walker claimed she had been advised by a police officer that she was legally permitted to secretly record the meeting if she had a concern for her safety.

The employer submitted that the employee’s covert recordings of conversations constituted a breach of s 7(1)(b) of the SD Act. Further, the employer adduced a statement from the police officer in question, in which he stated that he advised Ms Walker that she could make written records of any meetings she attended, but at no stage had he advised her that she had the legal right to audio record any conversations between parties, observing that an offence under the SD Act is a criminal offence.

As an initial determination, Deputy President Sams determined that, regardless of whether there was any subsequent finding by a Court that there had or had not been a breach of the SD Act, the FWC may admit evidence, illegally obtained or otherwise, in order to inform itself ‘in such a manner as it considers appropriate’. DP Sams highlighted that secret recordings are highly inappropriate, and agreed with the observations of Deputy President Colman in Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 where DP Colman stated:

‘Unless there is a justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction… once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment.

Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated’ (at [83]).

In deciding not to allow the recording, DP Sams considered that:

• the employee’s claim that she had police authority to secretly record a meeting with her employer was found to be false;
• there were issues of procedural fairness, as the employee’s evidentiary case had long since closed when she sought to tender the evidence, and the employee had failed to identify how many meetings she had recorded;
• it was becoming increasingly difficult to manage the case when new evidence was being ‘drip fed’ into the proceedings at inappropriate times and without the employer being given an opportunity to address new matters;
• the case authorities upon which the employee sought to rely on were distinguishable from the employee’s circumstances.

Accordingly, DP Sams rejected the employee’s application to have the recorded evidence admitted.

Conclusion

The FWC may inform itself in such manner as it considers appropriate (FW Act s 590). When it comes to the admissibility of improperly obtained evidence, the FWC in its discretion determines whether evidence sought to be adduced was in fact obtained improperly or unlawfully. It then considers whether the discretionary considerations favour its admission by reference to the factors as outlined in s 138 of the Evidence Act.

However, it is important to keep in mind the significance the FWC will place on giving appropriate weight to the effect of any impropriety or unlawfulness. As concerns are increasingly raised about the impact of surveillance on privacy, it is likely the discretionary ‘bar’ will be raised for the party seeking to adduce unlawfully obtained recordings.

Ultimately, evidence improperly obtained tends to reflect poorly on the practices of the party seeking to rely on it. In handling any legal proceedings, clean hands go a long way.

This article was first published in the November 2019 edition of the Law Society of NSW Journal. The publication can be accessed in full on the LSJ website here.