Worker's abusive rant caught on video: court mulls legality of recording

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Worker's abusive rant caught on video: court mulls legality of recording

The Federal Court has ruled a recording of an employee bad-mouthing and racially abusing his employer cannot be used in disciplinary proceedings. However it did not rule on the legality of recording the employee's conversation.

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The Federal Court has held it is arguable whether it is lawful to capture and use an audio-visual recording of an employee/union official bad-mouthing and racially abusing his employer on a picket line.

Accordingly, the judge ruled a recording couldn't be used against the employee in disciplinary proceedings.

There are several practical points for HR managers in this case although it specifically does not rule on whether or not it is lawful to carry out audio-visual recordings of striking workers. 

The facts


Mr “C” was a union official and a boilermaker employed by Griffin Coal Mining Company.
 
In June this year Mr C was on a picket line at about 9am talking to a ranger of the Shire of Collie, who happened to be an old friend of his.

Shortly thereafter, company-appointed security guards approached Mr C, there was an exchange and the security guards then moved back to about two to four metres away. 

At least one of the security guards was wearing a body-camera on the outside of his high-visibility jacket. It was deliberately worn that way, according to the guard, so that it could be seen. The security guard considered that it would have been readily apparent it was a camera.

Mr C, in contrast, testified that he did not recall seeing the security guards wearing a camera nor, he said, was he warned they were carrying out surveillance. 

Disparaging and offensive


After the guards had moved back, Mr C then became quite animated, expressing his low opinions of the company in “colourful” and loud language. 

This included disparaging and offensive comments about the company’s owners and management; racially abusive language to describe the company’s owners; and violent and profane language about a contractor of the company, according to an affidavit.

It was all recorded by the security guards. 

Subsequent events


About 10 weeks after the strike, Mr C was directed by a company HR manager to attend an inquiry into allegations against him of misconduct.

The HR manager/company showed Mr C the recording and put it to him that he had breached the company’s codes of conduct and ethics, the Mines Safety and Inspection Act 1994 (WA) and the Racial Discrimination Act 1975 (Cth).

Mr C (with legal advice) later responded that it was a recording of a private conversation, that he was off work, not in uniform and was unaware he was being recorded. He also acknowledged that he used offensive language. 

He later sought an interim ruling from the Federal Court to restrain any use of the recording by the company for the purposes of possible disciplinary and termination action. 

He argued that the recording was made in breach of the Surveillance Devices Act (1998) WA and/or breached the adverse action and coercion sections of the Fair Work Act. 

Surveillance law – prohibition and exemptions


Use of surveillance devices (such as digital cameras, binoculars, mobile phones or tablets as well as super-specialist spying equipment) is generally prohibited to record private activities or conversations but not public activities or conversations.

So there is an obvious question to ask: 'what is 'private' and what is 'public'?

The Surveillance Devices Act in WA (there are similarly worded Acts around the country) says that conversations and activities are “private” if they are carried out in circumstances when the parties to the conversations and activities expect that only they will listen to or observe those conversations or activities. 

However, conversations and activities are not private if the parties ought to reasonably expect that the conversation may be overheard or the activity observed by someone else. 

And then there are a wide range of exceptions, one of which is that making and using audio-visual recordings is legal if each of the parties to a conversation or activity expressly or impliedly consents. 

When ‘being in public’ is legally ‘being in private’


Mr C’s case turned on the definition of “private”. Mr C argued his racist abusive tirade on an industrial picket outside the employer’s gate on local authority land was “private”. The company argued that an activity or conversation cannot be private if it may be reasonably expected to be observed or overheard.

Judge McKerracher considered the actions of the various parties in the event. He considered that, in the first scenario, it was arguable that there was one conversation between Mr C and the ranger which was capable of being reasonably overheard. In that scenario, it would not be a private conversation and so the surveillance would be lawful. 

Alternatively, in a second scenario, the judge also held that it was arguable that there was one conversation between all four people (Mr C, the ranger and two security guards) even if one of the parties, Mr C, was largely doing all the talking.

In this second scenario, it could be argued that the conversation was a private conversation because there was no-one around to reasonably overhear, and, in which case, the guards were carrying out an unlawful recording. 

Decision… make no decision


So was the conversation private or not? It was ultimately decided by the judge that as:
  • the case was arguable each way
  • the company had the option of introducing verbal testimony from the security guards
  • the hearing was merely an interim hearing rather than a final hearing
  • there were many complexities that would occur in a final hearing before the Fair Work Commission or the Federal Court if there was a decision on this point now…
... then the interests of justice required the judge not to decide if the conversation was private or not. 

Judge McKerracher then held that the balance of convenience and the interests of justice weighed in favour of preventing the company from using arguably illegally gathered material in its disciplinary processes. 

What this means for employers, HR and security managers


This is a rather unhappy situation as it has effectively ruled… nothing. 

That said, there is some practical guidance to be had, as, in hindsight, it is clear the security guards in this case committed two tactical errors. 

Firstly, the security guards approached Mr C and spoke to him, enabling him (or, rather, his legal advisors) to claim that the security guards were part of the conversation. 

Secondly, they did not make it clearly and blatantly obvious they were carrying out a recording. If they had, then the company would have been on much stronger grounds for arguing that Mr C had impliedly consented to the recording i.e. if Mr C did not consent he simply could have moved away and/or shut-up.

So, tactically, employers, HR managers and security guard managers may want to brief frontline security guards that
  • to avoid being included as part of a private conversation                                                                                             
    • where there are two or more guards then one should ‘hang back’ a metre or so behind his or her colleagues, not speak to any picketers nor make any response in the event he or she is spoken to                                                                                                                                             
    • the other security guards may have to make an intervention if the ‘silent’ guard is spoken to  
  • to gain implied consent to any audio-visual recording                                                                                
    • station/post/hold a large, highly visible, highly legible sign in a prominent place stating that the picketed area is under audio-visual surveillance and recording                                
    • that sign should state where and when the audio-visual surveillance and recording is taking place.
Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248 (21 October 2016)
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