In Peter Mulhall v Direct Freight (Qld) Pty Ltd t/a Direct Freight Express [2016] FWC 58 (Mulhall’s Case) Commissioner Simpson ordered the Employer to pay the Applicant $25,468.13 in compensation because the Commissioner found that Mulhall had been unfairly dismissed on the basis of “flimsy” surveillance footage.
Workplace monitoring and surveillance is now commonplace and typically involves computer surveillance, tracking surveillance and/or CCTV recording.
Employers implement and use surveillance for many reasons including security as well as monitoring safety and productivity.
From time to time employee misconduct or misbehaviour is captured by surveillance and in such cases, employers must exercise caution to use the evidence appropriately.
In Peter Mulhall v Direct Freight (Qld) Pty Ltd t/a Direct Freight Express [2016] FWC 58 (Mulhall’s Case) Commissioner Simpson ordered the Employer to pay the Applicant $25,468.13 in compensation because the Commissioner found that Mulhall had been unfairly dismissed on the basis of “flimsy” surveillance footage.
How can employers appropriately rely on CCTV footage in disciplinary proceedings?
In Mulhall’s case, the Applicant was terminated for serious misconduct (theft) after an “investigation” determined that he had stolen a box containing a laptop that did not actually arrive at Harvey Norman. The Employer reviewed the CCTV footage and concluded that the Applicant had stolen the box.
The CCTV footage demonstrated that the missing box had arrived at the Employer’s premises and that rather than being loaded onto the truck by the Applicant, he had instead:
- placed the missing package onto the foot of the trolley without scanning it – but scanned all the other packages;
- moved the trolley to another area that was not bound for Harvey Norman; and
- continued to load packages on top of it and loaded it first onto the truck so it could be at the head of the truck next to the Applicant.
Commissioner Simpson concluded that CCTV footage relied upon by the Employer was flimsy and that the Employer was not able to prove on the balance of probabilities that the Applicant actually stole the box. Commissioner Simpson also noted the positioning of the CCTV cameras did not assist the Employer’s case.
In this instance the message from the Commission is that in order for misconduct to be proven on the balance of probabilities the employee must be clearly shown to have engaged in the conduct alleged. When installing CCTV cameras, employers should ensure that they are installed correctly and provide clear view of what is intended to be seen e.g. loading docks and conveyor belts.
If an employer obtains CCTV footage suggesting an employee has engaged in misconduct, it is important that the employer:
- reviews the CCTV footage prior to speaking with the employee to ensure that it can be clearly established that the employee engaged in misconduct;
- takes into account any relevant company policies and procedures in relation to workplace surveillance and disciplinary action;
- puts the allegations to the employee in writing and also invite the employee to a meeting to allow the employee the opportunity to view the footage;
- allows the employee to provide a response to the allegations at the meeting or in writing;
- allows the employee to have an appropriate support person present if the employee makes this request; and
- take the time to properly consider the responses provided by the employee and determine the appropriate disciplinary penalty.
In Mulhall’s case, the Applicant was not provided with the opportunity to view the CCTV footage and Commissioner Simpson determined that this was a denial of procedural fairness.
Mulhall’s case provides some handy guidelines for employers in relation to disciplinary action based on surveillance evidence and employers should take careful note of the comments in this decision.
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