Covert workplace surveillance: are there grounds for it?

A recent unfair dismissal case, Ms Shahin Tavassoli v Bupa Aged Care Mosman, in which an employee was dismissed based on footage obtained covertly by another employee, has raised some issues regarding covert workplace surveillance.

In considering the case, employers are reminded to:

• exercise caution when considering undertaking covert surveillance or otherwise using covert surveillance footage, including where an employee produces video footage secretly taken of another employee and
• ensure compliance with applicable surveillance laws if surveillance is considered necessary in the workplace.

Background – the unfair dismissal

Ms Tavassoli was employed as an Assistant in Nursing at an aged care facility in Mosman, NSW.

During a shift in November 2016, a colleague used his phone to secretly film Ms Tavassoli, without Ms Tavassoli’s knowledge or consent and produced the video to management. The employer alleged the footage showed Ms Tavassoli being disrespectful to a resident, laughing over the deaths of two residents and neglecting her duty by ignoring residents’ buzzers.

The Fair Work Commission (FWC) ultimately found that the employer forced Ms Tavassoli’s immediate resignation, after reading out the allegations to her based on the footage, such that Ms Tavassoli was constructively dismissed. It also found that the dismissal lacked a valid reason and was procedurally unfair. The FWC ordered Ms Tavassoli’s reinstatement.

Privacy implications – using covert surveillance

The FWC noted concerns about possible breaches of the Workplace Surveillance Act 2005 (NSW) (Workplace Surveillance Act) but also confirmed that the legality of the covert surveillance is not within the FWC’s jurisdiction.

While the implications of the employer having accepted, used and relied on covert surveillance records to defend its position were therefore not explored, this case nevertheless raises questions about the use of covert surveillance by employers.

Relevantly, the Workplace Surveillance Act prohibits:

• covert surveillance unless a prescribed ‘covert surveillance authorisation’ is obtained (or a prescribed exception applies e.g. with respect to surveillance in casinos, correctional centres or courts, or for law enforcement or workplace security purposes) and
• the use and disclosure of covert surveillance records (unless a prescribed exception applies e.g. where it relates to establishing an employee’s unlawful activity).

In this case, there were no apparent exceptions to these prohibitions.

While the employer, in this case, did not actively undertake covert surveillance, it did seek to use and disclose surveillance undertaken covertly by another employee. In some cases, the use of covert surveillance records in proceedings may not always be permissible.

Ms Shahin Tavassoli v Bupa Aged Care Mosman [2017] FWC 3200 (17 July 2017)