Australia: Privacy Failures Costs Employers

Two recent decisions of the Australian Industrial Relations Commission have resulted in significant levels of compensation paid to former employees in circumstances where matters of the employees' privacy were central to the question of fairness during the dismissal process. In both cases, the Commission observed that early and frank discussions with the employee would have been the fairer way to address concerns. That approach could have avoided the finding that the dismissals were harsh, unjust or unreasonable.

Case 1

An employee had eight years service and had developed a work related shoulder injury. The employee was off work for six weeks in mid-2006 for surgery, and undertook a graduated return to work program commencing in August 2006. The employee had been consulting his own doctor concerning the modified duties during that period. In January 2007, the employee went camping over the Australia Day long weekend. Unbeknown to the employee, the employer had arranged video surveillance of him camping. He later returned to work under the continuing graduated return to work program.

In May 2007, the employee was called to a meeting with management and his union representative. The video surveillance was played. Management representatives put to the employee that his certificates of capacity (that he had been completing in conjunction with his own doctor) were different or inconsistent with his actions whilst camping. The employee was then given an opportunity to respond, but was dismissed shortly after. The reason for dismissal was that the employee had made false representations about his capacity to work.

The video images were of the employee doing such things as:

  • pushing a boat out from the edge of a riverbank into the river,
  • using a chainsaw to fashion a cricket bat out of a block of wood,
  • throwing an anchor from a boat,
  • hitting a ball with a wooden bat, and
  • assisting another person to carry an Eski.

At the hearing, the medical evidence showed that the mere fact that the employee was observed raising his arm above shoulder height and lifting weights that were perceived to be in excess of 10 kilograms would not mean that he could perform his work tasks without restriction.

The Commission found that apart from some consultation with the employee's doctors in December 2006, the employer took no positive steps to engage with the treating practitioners about any changed circumstances, despite its suspicions that the employee had greater capacity. The Commission observed that "... instead, it set a more devious course of surveillance in what appears to have been an endeavour to avoid any WorkCover liability to which it may have been exposed". In particular, the Commission considered that the employer should have confronted the employee earlier about the issue.

The Commission awarded the employee six months wages as compensation, which is the maximum allowable.

Case 2

An employee had 15 years service with his employer. Prior to his dismissal, the employee was performing work as a forklift driver.

On 7 October 2007, the employee's Supervisor smelled alcohol on the employee's breath. Later that day, the Supervisor met with HR to report what he had observed and followed up with an email to the HR Manager.

On 8 October 2007, the HR Manager, rushing to a presentation to staff, had the email open on her laptop. When the HR Manager connected the laptop to the overhead screen, the email was shown to other employees. Although she quickly tried to shut it down, as the Commission observed, "the damage had been done".

On both 9 and 10 October 2007, the employee's colleagues made comments to him to the effect that the employee had a problem with alcohol. It wasn't until 10 October that the HR Manager approached the employee to apologise to him for what had happened.

On 15 October, the employee confronted and abused his Supervisor because the employee was still getting attention from his colleagues about the email. The employee was dismissed for abusing his Supervisor.

The Commission found that the dismissal was not harsh – because the employee had a history of aggravated behaviour and warnings. The Commission also found that the dismissal was not unjust – the conduct was found to have occurred as alleged. Importantly however, the Commission found that the dismissal was unreasonable. In particular, the Commission determined that allowing the email to be seen and failing to address that issue with the employee were mitigating circumstances which meant that the termination for the abusive conduct was unreasonable.

The employee was awarded four months wages as compensation.

Lessons for employers

When matters of employee "privacy" are handled poorly, a dismissal can be found to be unfair, even if there are valid grounds. It is important to deal with matters of discipline involving an employee's privacy as swiftly and as sensitively as possible.

Whilst there is no present separate general "right" to privacy in Australia, courts and tribunals are becoming increasingly interested in the topic. With advances in technology providing employers with new and helpful tools to monitor employee conduct, employers should also ensure that appropriate standards are in place, such as in policies and procedures, to guard against misuse.

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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