With the development of recording and surveillance technology, it is much easier for employees and employers to make secret recordings of meetings and conversations (for example). However, an issue can arise when one party intends to use such a recording as evidence in a proceeding before the Fair Work Commission (Commission).
Before considering two recent decisions in the Commission, the relevant legislation applicable to this issue is first looked at below.
Relevant legislation – workplace surveillance:
The two main pieces of legislation applicable here are the Workplace Surveillance Act 2005 (NSW) (Workplace Surveillance Act) and the Surveillance Devices Act 2007 (NSW) (Surveillance Devices Act). This is not an exhaustive list however (for example, work health and safety legislation contains certain requirements which must be complied with).
The Workplace Surveillance Act contains a number of obligations for employers intending to use workplace surveillance. For example, employees must be provided with prior notice before the surveillance commences (which is at least 14 days, unless the employee agrees to less). Additional requirements apply to employers intending to use camera, computer or tracking surveillance.
The Surveillance Devices Act is similar in certain respects; however, it has a wider application than the Workplace Surveillance Act. It contains obligations on any person installing and using listening devices, optical surveillance devices and tracking devices (among other things).
Relevant legislation – unlawfully obtained evidence in proceedings:
Section 138 of the Evidence Act 1995 (NSW) (Evidence Act) prohibits evidence – which was improperly or unlawfully obtained – from being admitted in court proceedings. However, if the court considers the desirability of the evidence to be admitted outweighs the undesirability of admitting it, it may still be admitted into evidence. Factors which are considered in that decision include (a) the importance of the evidence, (b) the nature of how it was obtained, and other things.
Because the Commission is not a court, it is not bound by the rules of evidence and procedure in the same way that courts are (see section 591 of the Fair Work Act 2009 (Cth) (Fair Work Act)). Instead, the Commission can inform itself of matters in any way it considers appropriate. This point is particularly relevant to two recent decisions below.
Ultimately, for proceedings before the Commission, the Commission must ensure that the employer and employee are afforded a “fair go all round” (section 381 of the Fair Work Act).
Krav Maga Defence Institute Pty Ltd T/A KMDI v Saar Markovitch (“Markovitch”)
In this case, the applicant, Mr Markovitch, was formerly the manager of a Krav Maga gym operated by KMDI. Krav Maga is a specialised martial arts / defence system. It is a full contact, high-risk activity for gym participants.
KMDI’s director, Mr Engelman, viewed CCTV footage taken of Mr Markovitch using his phone regularly at times when he was required to supervise gym classes. Shortly after that discovery, KMDI dismissed Mr Markovitch. KMDI alleged that his conduct created a serious risk of injury for gym participants and was serious enough for him to be dismissed immediately.
Mr Markovitch then lodged an application alleging that he was unfairly dismissed. In responding to the application, KMDI submitted that the dismissal was consistent with the Small Business Fair Dismissal Code and sought to tender a copy of the CCTV recording in support of that submission. Commissioner Riordan found that KMDI did not comply with its obligations under the Workplace Surveillance Act 2005 (NSW) in taking the recording. Because of that, the Commissioner found that the recording must be automatically excluded from evidence in the proceeding.
KMDI appealed that decision on a number of grounds. Importantly, one of the grounds of appeal was that even though there may have been concerns about whether the CCTV recording was properly obtained, the Commission is not bound by rules of evidence in the same way that a court is (KMDI referred to sections 590 and 591 of the Fair Work Act). In KMDI’s submission, the approach of automatically excluding the recording from evidence was inconsistent with the Commission’s discretion to inform itself of any matter in a way it considers appropriate.
The appeal was ultimately successful and the matter was remitted to another Commissioner to decide the matter. The appeal decision set an important precedent which was relevant in another recent proceeding below.
Kelly Walker (No. 2)
This decision followed an application for an anti-bullying order by Kelly Walker. Ms Walker was employed by Hunter Pain Clinic and alleged that she was being bullied in the workplace during her time there. She applied to the Commission for orders to stop the alleged bullying from continuing.
Importantly, during a meeting with a manager in the workplace, Ms Walker secretly recorded the conversation. She later sought to tender a copy of the recording of that conversation as evidence in her application before the Commission.
There were a number of issues with Ms Walker’s request to the Commission. For example, Ms Walker sought to tender the recording very late in the proceeding, after several stages of evidence had already been produced by both sides. Deputy President Sams commented that allowing the recording in as evidence at that stage would effectively “ambush” Hunter Pain Clinic. For that reason, it would be inappropriate and highly irregular to do so, according to the Deputy President.
Further, she alleged that a reason for making the recording initially was because she was advised by a senior police officer that she could make the recording if she had concerns for her personal safety. Subsequent evidence from the particular senior police officer was that he did not provide any such advice, however, and that there were other options to making a secret recording (such as leaving the meeting or bringing a support person with her).
The Deputy President ultimately determined that the desirability of admitting the evidence did not outweigh the undesirability of admitting it, which is the test contained in the Evidence Act.
This decision is important when comparing it to KMDI above. In KMDI, the Full Bench clarified that the Commission is not bound by the rules of evidence, and improperly or unlawfully obtained evidence may still be admitted in a proceeding before it. However, in Walker (No. 2), the Deputy President commented that although the Commission is able to admit such evidence, “secret recordings are highly inappropriate and is a practice to be generally eschewed.” Walker (No. 2) is an example where the Commission refused to admit improperly obtained evidence, despite not being bound by the rules of evidence which might otherwise have excluded it.
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