The Fair Work Commission recently held that an employer cannot rely on covert video surveillance in the workplace when disciplining an employee.
In Tavassoli v Bupa Aged Care Mosman [2017], a nurse was secretly filmed by her colleague. The video footage showed the nurse mocking a resident, ignoring a resident’s call for assistance and laughing whilst discussing the death of two residents. The colleague provided the footage to management, who then subsequently relied on the footage as grounds for termination of the nurse’s employment. The manager did not show the footage to the nurse and did not provide her with an opportunity to respond to the allegations.
The Commission held that the dismissal was harsh, unjust and unreasonable and decided that the nurse was not afforded procedural fairness. The Commission was also critical of the colleague for filming his co-worker without her consent. However, the Commission did not have jurisdiction to make a determination about the admissibility of the evidence.
The Commission noted that it was likely that the video footage breached the Workplace Video Surveillance Act 1998 (NSW) and further noted that the covert filming was a blatant breach of the employee’s privacy.
Under the Act, surveillance is considered covert unless the device is clearly visible and there are signs notifying employees that they may be under surveillance.
In light of this decision, employers should note:
- Employees should be afforded procedural fairness by being provided with details of the allegations against them and given an opportunity to respond;
- Employers should not seek to rely on evidence obtained covertly which potentially constitutes a breach of surveillance legislation; and
- Employers should comply with surveillance legislation applicable in the State where they are based.
If you would like more information about implementing surveillance in your workplace, please contact us.
