In Wellington City Transport Limited v Paualaisa & Ors, the Employment Relations Authority recently upheld an employer's ability to use a hidden camera to video an employee's suspected misconduct. This was despite the employee's protest that he should have been consulted before the camera was installed.
WCT, a Wellington public transport provider, received 2 telephone complaints about ticket irregularities by one of its drivers, Mr Paualaisa. Both complaints were received within a matter of days. WCT decided the situation was sufficiently serious to warrant an investigation into Mr Paualaisa's conduct and engaged an external agency to secretly video him on the job.
Caught in the actThe video recordings of 3 of Mr Paualaisa's shifts appeared to show him taking money from passengers on 13 occasions, without issuing a ticket, implying he had pocketed the cash. After carefully analysing the video recordings and the agency's report, WCT raised the incidents with Mr Paualaisa. WCT advised him in writing that a hidden video camera had been installed on his bus and what it had recorded. WCT requested a meeting with Mr Paualaisa the following day. He was given an opportunity to view a detailed written record of the video transactions and an edited tape to assist him in preparing a response. A full version of the tape was also made available to him and he was permitted to use WCT's facilities to view the tapes.
Objections to procedureMr Paualaisa raised various objections to WCT's disciplinary procedure. One particularly novel objection was that WCT was required to consult with him before carrying out any video surveillance and had failed to do so. Mr Paualaisa attempted to invoke a clause in the applicable CEC that required consultation with employees before WCT introduced new technology that 'altered' the drivers' conditions of work. The clause clearly contemplated new technology that might result in redundancies. But, if WCT's video surveillance of Mr Paualaisa was also covered by the clause it was obliged to consult with him.
WCT decided to raise this issue as a dispute with the Authority, rather than continue with its inquiry. Mr Paualaisa and his union brought a counterclaim against WCT seeking, amongst other things, a declaration that:
WCT had to comply with the procedures in the CEC regarding consultation before it could carry out covert video surveillance of Mr Paualaisa or any other driver.The manner in which WCT installed the cameras was a breach of good faith.Authority's determinationThe Authority rejected Mr Paualaisa's argument that WCT was required to consult with him and the other drivers before installing the camera. The Authority said the camera did not alter Mr Paualaisa's or the other driver's conditions of work to a significant degree. The bus drivers' conditions of work remained the same in that they were still required to properly account for money received through the required ticketing procedures.
The Authority also rejected Mr Paualaisa's argument that the manner in which WCT installed the cameras was a breach of good faith. The Authority commented that WCT was entitled to use the most reliable form of evidence it could in a situation where it had good cause to suspect irregularities in a driver's ticketing procedures.
Contracting outParties to an employment agreement may agree to constrain the employer's use of covert surveillance by providing for this in the employment agreement. The Authority noted that as the parties had not in this case, WCT's lack of consultation was lawful.
Good reason requiredThe Authority reiterated the Privacy Commissioner's view on video surveillance, ie. unless there is a good reason to the contrary, it is best practice for employers to notify employees when video surveillance is to be undertaken and wherever possible to secure their agreement to it.
WCT had reasonable grounds to suspect Mr Paualaisa may be guilty of theft. In the circumstances, WCT had good reasons not to notify Mr Paualaisa of its intention to record his shifts.
Lawful covert surveillance Employers should check the following before making a decision to use covert surveillance:
there are reasonable grounds to do sonotification would defeat the purpose of surveillancethere is nothing in the employment agreement constraining the employer's ability to do sothe surveillance will be limited to relevant periods, information and areas.This is a general summary only and should not be taken as a substitute for specific advice.
This article was also published in employment today's May/June magazine - issue 75.
For further information contact Andrea Lawton, solicitor:
andrea.lawton@phillipsfox.com
Web site:
Phillips Fox