New Zealand: Workplace surveillance a legitimate tool

Last Updated: 4 March 2013
Article by Scott Wilson and Summer Pringle

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 their staff.

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 centre).

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 to explain.

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 against employees.

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 suspected theft.

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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Scott Wilson
 
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