Australia: Unlawfully obtained evidence cannot be used for disciplinary action

Last Updated: 31 March 2017
Article by Lauren Drummond
Most Read Contributor in Australia, July 2018

The Federal Court of Australia (FCA) has prevented an employer from using a recording of a conversation between the employer, that was also a site union representative, and a third party.

The facts: Chappell and AMWU v Griffin Coal Mining Company Pty Ltd (2016)

On 23 June, Mr Chappell went to the Griffin Coal site near Collie in Western Australia, which was to be the site of an industrial protest the following day, to discuss the traffic management plan for a scheduled protest with a council representative.

Two security guards were employed by the mining company to patrol the entrance to the mine due to the anticipated protest. These guards approached Mr Chappell and the council representative, and one of the guards switched on a surveillance camera that was fixed to the middle of his chest. The recording showed the security guards were standing approximately 2 metres away from Mr Chappell, who was loudly and forcefully complaining of the company's treatment of its employees.

Mr Chappell, who was unaware the conversation had been recorded, received a letter from the company directing him to attend a meeting regarding allegations of misconduct that arose from the conversation. The company alleged he had used disparaging and offensive comments about its owners, as well as profane language to discuss a contractor of the company.

The law

Legislation in each state and territory largely prohibits the use of surveillance and recording devices to record or monitor persons in particular circumstances. Only NSW and ACT have enacted legislation specifically addressing surveillance in the workplace. The other jurisdictions have general legislation prohibiting use of surveillance devices in certain circumstances.

In Western Australia, the Surveillance Devices Act 1998 (WA) prohibits individuals from the use of:

  • listening devices to record, monitor or listen to private conversations or words spoken in a private conversation; and
  • optical surveillance devices to record visually or observe a private activity.

If the circumstances suggest that the parties reasonably expect that the activity or conversation might be overheard or observed, then it is not private.

Issues in this case

The mining company sought to rely on the video evidence to take disciplinary action against Mr Chappell. Mr Chappell and the Australian Manufacturing Workers' Union sought an injunction preventing the mining company from relying on the video footage.

Issues raised were whether the recording:

  • was made by a person who was not a party to the conversation and if so, whether the conversation was conducted in circumstances that ought to be considered private; and
  • was made by a party to the conversation and if so, whether it was done with or without the consent of the other parties.

The mining company's argument was that the recording was not a private conversation. It said the security guards were not participants in the conversation and due to their proximity, the conversation could reasonably be expected to be overheard. Therefore, the recording of the conversation was lawful.

Mr Chappell argued that all parties participated in the conversation (including the security guard recording the conversation). Given that all four parties were participants and no one else was in earshot, it could reasonably be taken to indicate that the parties desired the conversation to be heard only by themselves.

The decision

The FCA stated there was an arguable case that the conversation was a private conversation and in those circumstances, should not have been recorded without each party's consent. By not obtaining consent, recording the conversation was a breach of the Surveillance Devices Act 1998 (WA). The FCA made orders to the effect that the mining company was prevented from taking disciplinary action or terminating Mr Chappell's employment, based on the video footage of Mr Chappell, until the matter could be determined at a full hearing.

Lessons for you

Employers seeking to rely on video evidence to discipline an employee for misconduct must make sure the footage was obtained lawfully. Where an employee is unaware they are being recorded, and has a reasonable expectation that the activity or conversation was private, then the recording will likely breach legislation regarding use of surveillance devices.

Employers that have surveillance devices in the workplace should ensure employees are aware they may be recorded when carrying out their duties on the premises.

In NSW and the ACT, there are specific notification requirements regarding workplace surveillance. For video surveillance, employers must also have clearly visible signs at each entrance to the premises to notify persons entering the premises that they may be under surveillance.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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