Surveillance of telephone calls in workplaces

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