As technology advances and becomes less expensive, it is
increasingly common for employers to use surveillance technology in
the workplace but they must ensure they respect the privacy of
Today surveillance can take a variety of forms, including:
GPS tracking in work vehicles or mobile phones;
Monitoring of work emails or internet use;
Video cameras in the workplace; and
Measuring time not spent on the phone (i.e. at a call
In the recent case of Stuart v Downer New Zealand Ltd,
a Nelson street cleaner was dismissed for serious misconduct for
falsifying his timesheets. The employer had installed a GPS on its
employees' work trucks and discovered that there was a
significant mismatch between the time of the last stop (Mr
Stuart's home) shown in the GPS records and the finish time
recorded by Mr Stuart on his timesheets. Over six months, the
mismatches indicated that Mr Stuart had claimed 17 hours in excess
of his lunch allowance in addition to 46 hours at home at the end
of the day.
The Employment Relations Authority found that the employer
carried out a sufficient and fair investigation into the matter. Mr
Stuart was provided with copies of his timesheets and the GPS
records for the period in question, he attended the disciplinary
meeting with a union representative and was given the opportunity
Mr Stuart argued that the decision to dismiss him was overly
harsh as he had been doing maintenance and other work related tasks
at home. He asserted that the real issue was that he didn't
keep sufficiently detailed records of the work he undertook at home
rather than there being an issue of falsifying his time sheets. He
also said that the employer did not take into account that he had
worked for the company for six and a half years with no complaints
against him. The Authority rejected Mr Stuart's arguments and
found that the employer's decision was appropriate and
justified as Mr Stuart worked alone and the employer needed to have
trust and confidence in him. It was also relevant that falsifying
timesheets was treated as serious misconduct in the employer's
code of conduct, and the discrepancies were not minor in nature and
added up to a considerable amount of time over the six months.
This case demonstrates that surveillance technology can be used
by employers to monitor and take disciplinary action if necessary
While it is possible for employers to use surveillance
technology in monitoring and collecting information from work
devices about an employee's activities, employers need to be
mindful of the privacy principles which may apply. If employers
want to use collected personal information in, say, a disciplinary
context, privacy principles require that the information must be
collected in a fair and reasonable manner. This means that, in
general, an employer should ensure their employees are aware
(through the employment agreement or a policy) that surveillance
technology is being used to monitor their activities. There may be
an exception to this if it would prejudice the purpose of
surveillance – for example, to detect a specific instance of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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