Court Rejects Secret Footage

26 May 2017

Far from a mining company’s smoking gun, a recent decision of the Federal Court restrained an employer from using secret footage of an employee making “adverse” and “colourful” remarks about it as part of its subsequent disciplinary investigation.

The footage in question was obtained when Mr Chappell (“the employee”) met with Union representatives to inspect the site of an upcoming protest. After concluding the meeting the employee continued to have a discussion with a ranger, who was an old friend.

During this conversation the employee expressed his frustration with the company in the lead up to the protest, using racially abusive language to describe the company’s owners, whilst swearing and using violent and profane language in reference to contractors at the site.

Unbeknownst to the employee, the conversation was recorded by a nearby security guard hired by Griffin Coal Mining Company Pty Ltd (“the employer”) to monitor the site during the protest. The guard, who was wearing a lapel camera affixed to his high visibility jacket was less than two (2) meters from the employee.

Upon pursuing a disciplinary investigation into the employee’s actions, the employee sought to restrain the employer from using the video against him, arguing that it was a private conversation between “old friends” and was in breach of the Surveillance Devices Act 1998 (WA).

In his judgment Justice Neil McKerracher said there was an arguable case that the employee was speaking to “all and sundry in that group, expressing his unhappiness loudly and in no uncertain terms”.
“While the initial indications were that the conversation was regarded as being a private conversation only between [the employee] and the ranger, there is equally no doubt in my mind that there is a strong case that [the employee] was well and truly more than content for the security guards to be hearing the remarks he was making about the company,” he said.

While Justice McKerracher was not required to provide a final view on the issue, he favoured a conservative approach, granting the employee injunctive relief. The Order prevented the employer from terminating the employee or taking any disciplinary action against him in reliance on the video.

However, (and this is a big however) this would not prevent the employer from relying on the evidence/recollections of the security guard in considering the employee’s conduct or disciplining him.

Key point for employers relying on video evidence; ensure footage is lawfully obtained and if that fails, hope for a good witness.