By Jack de Flamingh and James Connolly -
Snapshot
- Surveillance is increasingly available and relied upon as objective evidence in employment litigation.
- The Fair Work Commission has been prepared to adopt the approach in the Evidence Act to allow unlawfully obtained evidence where it is sufficiently desirable to do so.
- The tolerance to do so will turn on the facts and circumstances of each individual case.
Ever get the feeling you’re being watched? Chances are, you are. The proliferation of surveillance devices in public places doesn’t stop at the office door. According to a recent story in The Guardian, workplace surveillance is on the rise and many of us are either unaware of it or are simply resigned to it (Arwa Mahdawi, “The Domino’s ‘pizza checker’ is just the beginning – workplace surveillance is coming for you“, The Guardian Australia (online) 15 October 2019).
Unsurprisingly, the use of surveillance and covert recordings has featured in a number of workplace matters recently. Both employers and employees are increasingly using recordings to justify their own actions, through the use of sophisticated surveillance tools, or the recording capability of smart phones.
Unfortunately, there is the small matter of whether the recordings were lawfully obtained. Employers often aren’t totally across all the requirements for lawful surveillance of employees in the workplace, and employees are similarly unaware of the legal consequences when purporting to protect their own interests by recording discussions with colleagues.
Recent decisions of the Fair Work Commission (‘FWC’) have confirmed that surveillance evidence and recordings can be used in proceedings, even if they were unlawfully obtained. However, this is at the discretion of the FWC, and parties must still overcome certain hurdles when attempting to adduce such evidence.
