These interesting passages from an unfair dismissal appeal in the Fair Work Commission deal with the law in Australia which concerns surveillance in the workplace by an employer of telephone calls participated in by employers.
“Consideration
First and second grounds of appeal
[17] The Appellant contends in his first ground that the Deputy President made an error of
law by not considering, properly or at all, whether the Appellant had actual or inferred actual
knowledge when engaging in the conversations (the subject of the Recordings) that they would
be intercepted, recorded and listened to by the Respondent. Further, the Appellant contends that
the Deputy President made a significant error of fact by finding that when engaging in those
conversations, the Appellant had knowledge, whether actual or inferred, that the Respondent
would intercept, record and listen to those conversations.
[18] Considering the first and second grounds of appeal, we observe that the Deputy
President commenced the Decision by briefly stating the background of the Decision. The
Deputy President noted the Appellant signed a contract of employment with the Respondent in
October of 2010 which included the following clause, reproduced in full in the Decision:
“10. SURVEILLANCE IN THE WORKPLACE
The Company gives you notice that surveillance may take place while you are at work
through camera, computer or tracking surveillance. Such surveillance may be carried
out by any of the following means:
…
- telephone voice recordings for incoming and outgoing calls in some areas of the
business.
…”
[2023] FWCFB 88
5
[19] The Deputy President noted that in late 2021 or early 2022, the Respondent published a
policy document entitled the ‘Employee Standing Instructions 2022’ (the Policy), which
included at Clause 1.30 that surveillance in the workplace included “audio recording of
telephones at some of the MSS Security work locations”.
[20] The Deputy President turned to consider whether the Respondent had breached the TIA
Act and the Listening Devices Act 1992 (ACT) (LD Act), as alleged by the Appellant. The
Deputy President set out the relevant sections of each Act.
[21] In her consideration of the TIA Act, the Deputy President observed that ‘interception’
under the TIA Act means interception without the knowledge of the person making the
communication. Accordingly, the Deputy President found it necessary to determine whether
the Appellant had knowledge of the interceptions.
[22] After stating that she had concluded that the Appellant had the requisite knowledge, the
Deputy President provided reasons for this conclusion. The Deputy President canvassed the
evidence of the Appellant, Mr Raj Daroch, National IT Manager, and Ms Rebecca Edwards,
National Talent Acquisition, Retention and Experience Manager. The Deputy President
considered the Appellant’s evidence that he understood the reference to ‘incoming and outgoing
calls’ in the Policy to be a reference to external calls only, and that he understood external calls
were monitored. The Deputy President observed that email communications between the
Appellant and the Respondent’s IT department, in which the Appellant confirmed that
monitoring of his landline telephone should continue, did not state the monitoring was limited
to external telephone calls. The Deputy President accepted the evidence of Ms Edwards that in
2019 she had a conversation with the Appellant to the effect that he understood his phone was
being recorded. On the basis of this evidence, and the terms of the Appellant’s employment
contract and the Policy, the Deputy President concluded that the Appellant had knowledge that
his landline telephone was being recorded and rejected the contention that the Recordings
breached the TIA Act.
[23] The Deputy President then turned to consider whether the Respondent had contravened
the LD Act. The Deputy President observed that, under the LD Act, a person can use a listening
device to record a private conversation if each principal party to the conversation consents to
the use of the listening device. The Deputy President relied on her findings in relation to the
TIA Act, the terms of the employment contract and the Policy and determined that the Appellant
consented to the use of a listening device to record the conversations. The Deputy President
was satisfied that the Respondent was a ‘party’ for the purposes of the LD Act, being a person
who, with the consent of any of the persons who speaks or is spoken to in the course of the
conversation, listens to or records the conversations.
[24] The Deputy President briefly considered whether the Respondent’s use of the LD Act
was authorised by the Workplace Surveillance Act 2011 (ACT) (Privacy Act) and determined
that the Privacy Act does not cover surveillance in the nature of voice recordings.
[25] Finally, the Deputy President turned to consider whether the evidence should otherwise
be excluded. The Deputy President considered that the Recordings have probative value and
are relevant to the unfair dismissal application. The Deputy President concluded that there was
[2023] FWCFB 88
6
no basis to exclude key evidence aimed at proving the conduct for which the Appellant was
dismissed.
[26] When the Decision is properly considered, it is apparent that the Deputy President was
satisfied on the evidence before her that the Appellant had “actual knowledge” that his phone
line was being recorded. We consider this was a finding that was reasonably open to the Deputy
President. In the proceedings before the Deputy President the Appellant made admissions that
he knew the “inbound and outbound external telephone calls” (i.e. telephone calls to and from
devices not owned by the Respondent) may be monitored and recorded. On the basis of the
terms of the employment contract and the Policy, and the evidence of Mr Daroch and Ms
Edwards, the Deputy President determined the Appellant understood incoming and outgoing
calls (both external and internal) on the Appellant’s phone line were being recorded.
Accordingly, we are not persuaded the first and second appeal grounds disclose any arguable
cases of appealable error.”
McGlashan v MSS Security Pty Limited [2023] FWCFB 88 delivered 9 May 2023 per Catanzariti VP, Clancy DP and Harper-Greenwell C