A common question we are asked is: What are we allowed to do to monitor what our employees are doing at work? Under general law, employers are able in certain circumstances to conduct surveillance over their employees; both with and without their knowledge. But where do we draw the line?
A recent case heard by the FWC highlights the implications for employers when CCTV footage is not used in the right way. Direct Freight Express were ordered to pay over $25,000 in damages for unjustly dismissing an employee, alleging he stole a laptop that went undelivered to Harvey Norman. The company used CCTV footage as evidence for the dismissal, claiming the driver was ‘suspiciously’ trying to ‘obscure the package from the camera’s view’. The drivers request to see the footage was denied at the disciplinary meeting and was shortly after dismissed.
Also, knowing the difference between ‘overt’ and ‘covert’ surveillance is imperative. ‘Overt’, allows for the lawful surveillance of employees where 14 days notice need be given prior to the surveillance commencing. Notice includes the type of surveillance (camera, computer, and tracking), how will be carried out, time commencing amongst other requirements.
There are also requirements relating to signage and notification that must be adhered to.
In situations where an employer seriously suspects their employee is participating in unlawful activity, ‘covert’ surveillance methods may be used where it is believed that these measures arenecessary to prevent any wrongful conduct. Covert surveillance involves surveilling employees without their knowledge and needs to be approved by a magistrate.
Lessons for Employers
Knowing and understanding the laws on surveillance in the workplace is essential. Each states laws are different and so employers need to take care to ensure that they comply.
· Employers should be wary of the level of signage within the workplace and notice given to employees.
· All new employees must also be informed of all overt surveillance methods that are in operation.
· Employers must have an appropriate company policy relating to workplace surveillance, and ensure employees are aware of these surveillance methods.
· Failure to adhere will mean an inability to rely upon the surveillance material in disciplinary action.
Andrew Bland (Principal)
BlandsLaw