The modern employment relationship is one which readily sees employers monitoring the output of employees. There are privacy considerations which also come into play when determining what an employer can monitor, with employers required to carefully consider the surveillance methods adopted.
There is a balance to be struck between monitoring in an ethical manner, along with ensuring that the employer protects its business interests. Workplace surveillance can occur in various forms, but put simply, relates to an employer using surveillance methods to collect information on employees. This may occur through emails, internet use or time recording. The primary focus in doing so is to ensure that the workplace is safe for all, ensure that staff are working to their optimal levels and detect and eliminate any unsavoury behaviours.
There is legislation in NSW which governs this areas and includes the Workplace Surveillance Act 2005 (NSW) (“the Act”) which details the requirements in relation to providing notice to employees who are under surveillance.
Recent case law has highlighted that notice of surveillance is not always necessary where the employee is sufficiently aware of the fact that they are under surveillance and impliedly consents to the surveillance (Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch (2019) 287 IR 134). In this case, the employer utilised CCTV to capture an employee using a phone whilst he was supposed to be supervising children in a class room. The employer had previously reprimanded the employee for similar conduct and proceeded to terminate the employee after reviewing the footage.
The surveillance was held to be lawful and admissible in proceedings as it was not implemented for the specific purpose of monitoring employees, but was an additional safety measure for the protection of employees and students.
This is an area of the law that requires legal support and our team at Baker Love Lawyers are able to assist you with any employment issues that you may have. We can assist with drafting, reviewing and amending any contracts, policies or procedures as required to protect your staff and business.
