Breach of video surveillance law results in reinstatement

Cases

Breach of video surveillance law results in reinstatement

The Workplace Video Surveillance Act 1998 (NSW) must be followed strictly by employers who wish to monitor employees’ activity by use of video.

WantToReadMore

Get unlimited access to all of our content.

Key point: The Workplace Video Surveillance Act 1998 (NSW) must be followed strictly by employers who wish to monitor employees’ activity by use of video.

Detail: Breaches of the video surveillance legislation was one of a number of breaches by the employer in failing to afford procedural fairness to nine hospital security personnel who had been dismissed for leaving the workplace without authorisation.

Deputy President Sams of the IRC (NSW) reinstated the employees.

Allegations of misconduct were not substantiated. There were also allegations of fabricated evidence.The employees had not cooperated with the investigations and the Commission thought this was understandable but ill-advised.

There were allegations of award breaches in requiring employees to work extended period without a break.

Three applicants resigned, but the commission found these resignations were constructive dismissals. There was a failure to take account of explanations. Custom and practice established had allowed absences from thehospital and these were not always authorised.

The investigation was seriously flawed – there was failure to give weight to mitigating factors, there was condonation of conduct by the employer and a failure to satisfy the evidentiary onus.

The Deputy President noted:

‘It seems to me that it would have been reasonable for the employees to be told precisely where they were accused of being. I don't understand why it wasn't.’

Video surveillance

On the video surveillance the Deputy President stated:

‘There can be absolutely no quibble with the fact that covert video surveillance was conducted outside the specifications ordered by the Magistrate on 21 August, 2002 and in breach of the Surveillance Act.

'Firstly, the conditions specified the covert surveillance was to only occur between 6.00pm on 21 August to 20 September 2002. The evidence before the Commission made clear that the bulk of the covert surveillance had been completed prior to the 20 August.

'Secondly, the specification identified that the covert surveillance was to be limited to the surveillance of security officers "during their attendance in the staff car park areas." Clearly, the video surveillance as shown during these proceedings extended well beyond the staff car park areas. Indeed, Mr M did not believe that a court order was necessary for video surveillance in public car parks on hospital grounds. This was plainly wrong (which he later conceded).

'Thirdly, the video was not provided to the employees within a reasonable period after being requested by them.

'Fourthly, no report on the results of the surveillance was prepared for the Magistrate as required by s23 of the Act.’

See: Staal and Tupene and Health and Research Employees' Association of New South Wales(on behalf of Nagy and Others) v Western Sydney Area Health Service [2004] NSWIRComm 27 – Sams DP – 10 March 2004.

Related: Surveillance law explained.

 

  

Post details