Monday 13th April 2016
Caught on camera – justifying surveillance
|In today's Workplace Bulletin:|
- Is it legal to film workers without their knowledge?
|Most of us would have seen current affairs-type TV programs where supposedly injured workers on sick leave are ‘caught on camera’ undertaking tasks that they are unfit to perform at work.|
But is it legal to film workers away from the workplace without their knowledge?
Where you suspect, on reasonable grounds, an employee is working in a manner inconsistent with medical restrictions while claiming sick leave or workers’ compensation benefits, covert surveillance conducted in an appropriate manner is an acceptable means of investigating such conduct.|
State and territory legislation may restrict that covert surveillance, particularly when the employee has a reasonable expectation of privacy.
The use of covert surveillance evidence may count against you if you dismiss the employee on the basis of that evidence and the employee makes an unfair dismissal claim. This may arise because:
- the surveillance is unjustified i.e. you don’t have reasonable grounds for holding the suspicion that you are seeking to investigate through the surveillance
In Kinnane v DP World Brisbane Pty Limited (2014), a fitter made a workers’ compensation claim for an aggravated injury, which was accepted. After taking some time off and seeking medical attention, the employee returned to work on restricted duties. The employer was suspicious that the employee was working outside of his medical restrictions in his own business and arranged for covert surveillance of the employee.
- the surveillance is accrued in an unreasonable manner
The employer dismissed the employee on the basis that the evidence showed the employee performing work in his own business inconsistent with his medical restrictions.
Conflict, misconduct and allegations of wrongdoing are bound to arise in your workplace at some point. You need to deal with these issues quickly, before they get out of hand.
Click here to find out how to conduct a fair and effective workplace investigation.
|The Fair Work Commission (FWC) was critical of the employer’s use of covert surveillance and it was a factor in the decision that the dismissal was unfair (see further discussion below). In particular, the FWC criticised the following:|
Avoiding the same mistake
- The employer initiated the covert surveillance because it suspected that the employer was defrauding WorkCover and the employer, yet it did not have any grounds for this suspicion.
- Before dismissing the employee, the employer did not show the employee the video surveillance.
- The briefing to the investigator was not neutral and did not accurately state the medical restrictions.
- The employer also provided unnecessary personal information about the employee to the investigator including date of birth, mobile telephone number, details of his treating medical practitioners and his next scheduled appointments.
- The investigator’s report contained unnecessary and prejudicial detail e.g. the employee is ‘of bikie appearance’, he talking to a 20-year-old woman of ‘heavy build’, make and registration number of vehicles that entered the employee’s property or his business premises, and ‘he dropped his child at a school’.
The financial costs of getting an investigation wrong, and the damage it can do to your business’s reputation, internally and externally, should be motivation enough to ensure you get the process right.
The Portner Press Effective Workplace Investigations is an essential guide for anyone who is likely to take responsibility for investigating inappropriate conduct, workplace conflicts or complaints.
Written by expert workplace investigators, in clear and practical plain English, this is no throw-away pamphlet – rather it’s a 292-page eBook that looks at each step a workplace should follow to respond appropriately when the need for an investigation arises.
It explains in detail:
It also contains information on how to write an investigation plan and has more than 30 downloadable checklists to confirm your investigative procedure is sound.
- How to judge when an investigation is required;
- How to avoid common pitfalls;
- How to plan and scope the investigation appropriately;
- How to collect and analyse evidence;
- How to make findings of fact in a procedurally fair way;
- How to assess any proven conduct against your policies and procedures; and
- How to consider whether your organisation should take any further steps to improve working relationships or to manage risks.
This versatile Effective Workplace Investigations is an extremely useful tool for any business needing to conduct an investigation now or in the future.
Editor–in–ChiefEmployment Law Practical Handbook
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