Fair Work Commission ruling demonstrates the importance of workplace surveillance policies and contract clauses
In Terrence McGlashan v MSS Security Pty Limited [2022] FWC 3304, an employee’s ‘extremely offensive’ telephone calls were ruled to be admissible as evidence in unfair dismissal proceedings because the FWC was satisfied they were obtained legally. The case contains lessons about the concept of ‘consent’ in the context of workplace surveillance generally, not just recording of phone calls.
In our view, the most important lesson of the case is that having a properly drafted employment contract and workplace surveillance policy can be the difference between an employer’s workplace surveillance activities being lawful or unlawful.
Facts
The applicant, Mr McGlashan, was dismissed after MSS became aware of ‘extremely offensive’ telephone recordings between Mr McGlashan and other MSS employees. He filed an unfair dismissal application; however, before that application was heard, he sought an advance ruling on admissibility of the recordings in the proceedings.
Mr McGlashan asserted that the recordings were inadmissible because they were obtained in contravention of the surveillance legislation in the Australian Capital Territory. Under that legislation, the relevant issue was whether the recordings had been obtained with (or without) Mr McGlashan’s knowledge and/or consent.
Mr McGlashan had signed an employment contract with MSS Security Pty Limited (MSS) which relevantly included a provision giving notice that camera, computer or tracking surveillance may take place at work. MSS also published a policy which stated that surveillance in the workplace included ‘audio recordings of telephones at some of the MSS Security work locations.’
Decision
Mr McGlashan admitted he knew external telephone calls could be recorded but claimed he did not know that internal telephone conversations could be recorded. However, the policy only stated that there may be surveillance of ‘telephones’ and did no make any distinction between internal and external calls. MSS also provided evidence that Mr McGlashan had previously confirmed to MSS’s IT coordinators that his telephone line needed to be recorded, again without distinguishing between internal and external calls. Accordingly, the FWC was satisfied that Mr McGlashan knew that his telephone calls could be recorded.
The FWC was satisfied that, in knowing that his telephone calls may be recorded and agreeing to the terms of the employment contract and the policy, Mr McGlashan had also consented to the use of a listening device to record his telephone conversations.
The FWC noted that it is vested with the discretion to inform itself, including permitting a party to adduce evidence. The FWC considered that the recordings were probative value in determining whether Mr McGlashan had been unfairly dismissed.
Therefore, the FWC was satisfied that the recordings should be admitted as evidence in the proceedings.
Take Home Messages
Employers should be aware that different surveillance legislation applies in each jurisdiction in Australia and consider what requirements apply to them before commencing any workplace surveillance or using any information uncovered through that surveillance.
A common theme throughout all jurisdictions is that various kinds of surveillance (such as audio, video, GPS and data surveillance) are permissible with the ‘consent’ of an employee. ‘Consent’ includes ‘implied consent’.
This case also demonstrates the importance of including a surveillance provision in employment contracts and providing a clear workplace surveillance policy which specifies how employees will be monitored before undertaking workplace surveillance.
Norman Waterhouse has significant experience in assisting public and private sector clients to implement workplace surveillance lawfully and effectively. We can assist you to identify your rights and obligations in respect of workplace surveillance, including providing workplace surveillance clauses and policies for your use.
Should you have any queries in relation to the matters raised in this article please contact Sathish Dasan on +61 8 8217 1337 or sdasan@normans.com.au, Chris Alexandrides on +61 8 8210 1299 or calexandrides@normans.com.au or Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.
