Telephone surveillance in the workplace

What follows is a decision  of the Fair Work Commission as to the admissibility into evidence in an unfair dismissal case of recordings made by an employer, pursuant to its policies published to its employees, of telephone calls made by and to an employee who had been dismissed and had commenced an application for an unfair dismissal remedy.

“Application for an unfair dismissal remedy – application for advance ruling on the admissibility of evidence.

[1] Mr Terrence McGlashan (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy concerning the termination of his employment by MSS Security Pty Limited (the Respondent).

[2] The Applicant was dismissed after the Respondent became aware, during the conduct of an investigation unrelated to the Applicant, of telephone recordings held between the Applicant and other employees of the Respondent which it said were extremely offensive in nature (the Recordings).

[3] The Applicant contended that the Recordings were illegally or improperly obtained and should be excluded as evidence in these proceedings. He sought an advance ruling on the admissibility of the Recordings, and the Respondent agreed that the determination of this issue as a threshold question was appropriate in the circumstances.

[4] For the reasons set out below, I find the Recordings were not illegally or improperly obtained and the Recordings can be admitted as evidence in these proceedings.

Factual background

[5] The factual background can be briefly stated.

[6] The Applicant commenced employment with the Respondent in October 2010.

[7] It is not in dispute that in September 2014 the Applicant signed an employment contract, which included a provision dealing with workplace surveillance. The clause is in the following terms:

“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:

  • fixed cameras that monitor or record visual images of activities at premises or within or near Company vehicles;
  • software or other equipment that monitors or records the information input or output, or other use, of a computer (including the sending and receipt of emails and the accessing of Internet websites); and/or
  • electronic devices that monitor or record geographical location or movement (including devices such as global positioning system tracking devices, hand­ held terminals, mobile phones and/or access control cards); and
  • telephone voice recordings for incoming and outgoing calls in some areas of the business.

This surveillance will have commenced at the date of your employment on an ongoing and continuous daily basis. Such surveillance is undertaken while you are at work for the purposes of quality control and ensuring the security of the workplace and persons in it and the surveillance of any employee will be secondary to that purpose. You agree that you have been given sufficient notice of the intended surveillance.”

[8] It is also not in dispute that in late 2021 or early 2022 the Respondent published a policy document known as the Employee Standing Instructions 2022 (the Policy). Clause 1.30 of the Policy states that surveillance in the workplace included “audio recording of telephones at some of the MSS Security work locations”.

[9] The Applicant accepts that he knew external calls were recorded.

[10] The Applicant denies knowing that internal telephone calls would be intercepted or recorded by the Respondent.

Relevant legislation

[11] The Applicant contends the Recordings were obtained in contravention of section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) and/or section 4 of the Listening Devices Act 1992 (ACT) (LD Act).

[12] The relevant sections of the TIA Act are as follows:

6 Interception of a communication

(1) For the purposes of this Act (other than Schedule 1), but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication. (emphasis added)

7 Telecommunications not to be intercepted

(1) A person shall not:

(a) intercept;

(b) authorize, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunications system.

[13] The TIA Act also provides the following definitions in section 5:

5F When a communication is passing over a telecommunications system

For the purposes of this Act (other than Schedule 1), a communication:

(a) is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and

(b) is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.

5G The intended recipient of a communication

For the purposes of this Act (other than Schedule 1), the intended recipient of a communication is:

(a) if the communication is addressed to an individual (either in the individual’s own capacity or in the capacity of an employee or agent of another person)—the individual; or

(b) if the communication is addressed to a person who is not an individual—the person; or

(c) if the communication is not addressed to a person—the person who has, or whose employee or agent has, control over the telecommunications service to which the communication is sent.

5H When a communication is accessible to the intended recipient

(1) For the purposes of this Act, a communication is accessible to its intended recipient if it:

(a) has been received by the telecommunications service provided to the intended recipient; or

(b) is under the control of the intended recipient; or

(c) has been delivered to the telecommunications service provided to the intended recipient.

(2) Subsection (1) does not limit the circumstances in which a communication may be taken to be accessible to its intended recipient for the purposes of this Act.

[14] Section 4 of the LD Act provides:

4 Use of listening devices

(1) A person must not use a listening device with the intention of—

(a) listening to or recording a private conversation to which the person is not a party; or

(b) recording a private conversation to which the person is a party.

Maximum penalty: 50 penalty units.

(2) Subsection (1) does not apply to—

(a) the use of a listening device under an authority granted by or under a law in force in the ACT; or

(b) the unintentional hearing of a private conversation by means of a listening device.

(3) Subsection (1) (b) does not apply to the use of a listening device by, or on behalf of, a party to a private conversation if—

(a) each principal party to the conversation consents to that use of the listening device; or

(b) a principal party to the conversation consents to the listening device being so used, and—

(i) the recording of the conversation is considered by that principal party, on reasonable grounds, to be necessary for the protection of that principal party’s lawful interests; or

(ii) the recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to any person who is not a party to the conversation.

(4) Subsection (3) (b) (i) does not apply so as to exempt a person from the application of subsection (1) if the relevant listening device is used by or on behalf of the Territory.

Did the Recordings contravene the TIA Act?

[15] The TIA Act makes it clear in section 6 that “interception” of a communication for the purposes of the TIA Act means interception without the knowledge of the person making the communication.

[16] In the circumstances of this matter, if the Applicant had knowledge that the communications in question were recorded then the Recordings did not contravene the TIA Act. It is necessary then to determine whether the Applicant had the requisite knowledge.

[17] I am satisfied that the Applicant did have knowledge that his telephone calls were recorded.

[18] The Applicant admits he knew that “inbound and outbound external telephone calls (that is, telephone calls to and from devices not owned by the Respondent) may be monitored and recorded by the Respondent”. He denies knowing internal calls (that is, telephone calls to and from telephones owned, issued or controlled by the Respondent) were monitored or recorded. To this end, he gave evidence that he understood the reference to “telephone voice recordings for incoming and outgoing calls in some areas of the business” in the Policy meant calls coming or going externally and did not include internal calls.

[19] However, clause 1.30 of the Policy simply refers to the fact that surveillance in the workplace includes “audio recording of telephones at some of the MSS Security work locations”.

[20] The Applicant gave evidence that he made telephone calls, using an office landline telephone owned by the Respondent, to other employees’ landlines. He understood these were personal telephone calls and were not monitored or recorded. It was conversations made on landlines to other employees that comprised the Recordings.

[21] Mr Raj Daroch, the Respondents National IT Manager, gave evidence in which he explained how the Respondent’s telephone services which were provided by Telstra operated. I accept his evidence and it is not repeated here. Mr Daroch also explained that the Applicant’s phone line had been recorded as part of the ACT Operations Centre since 2010. He annexed a copy of an email exchange in July 2019 between the Applicant and one of the Respondent’s IT Coordinators, in which the Applicant was asked to confirm whether certain landline phone numbers, including his own, were still required to be recorded. His answer was relevantly that his telephone line still needed to be recorded. Again in November 2021, the Applicant confirmed with the IT Coordinator in an email that his number was “still fine to be recorded”. Neither email exchange in any way limits the telephone calls to be recorded to external rather than internal calls.

[22] As indicated earlier, the allegation the Recordings were obtained illegally or improperly fails if the Recordings were made with the knowledge of the participants.

[23] I am satisfied, based on the Applicant’s employment contract, the Policy, and the email exchanges referenced earlier, that he knew his phone line was being recorded. Further, I accept the evidence of Ms Rebecca Edwards as to her conversation with him in 2019 to the effect that he knew his phone was recorded.

[24] Accordingly, I reject the contention that the Recordings breached the TIA Act.

Did the Recordings contravene the LD Act?

[25] In terms of the LD Act, a person can use a listening device to record a private conversation if each principal party to the conversation consents to that use of the listening device.

[26] I am satisfied that by agreeing to the terms of his employment contract and the Policy, and based on the earlier findings in the context of the TIA Act, the Applicant consented to the use of a listening device to record what would otherwise be a private conversation.

[27] I am further satisfied that the Respondent falls within the definition of a ‘party’ to a conversation in that a party includes 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 conversation.

Was the Respondent’s use of the LD Act authorised by the Workplace Surveillance Act 2011 (ACT) (Privacy Act)

[28] The Applicant argued that the Respondent’s use of the LD Act was not authorised by the Privacy Act because telephone intercepts and listening devices do not fall within the meaning of surveillance as defined in s.11 of the Privacy Act, and therefore the manner in which the Respondent covertly intercepted and recorded the calls was not covered by the Privacy Act.

[29] In the alternative, the Applicant argued that the Respondent failed to provide notice required by the Privacy Act that his internal calls would be subject to surveillance, and it conducted covert surveillance of him in his workplace without notifying him.

[30] I am satisfied, and the Applicant accepted, that the Privacy Act does not cover surveillance in the nature of voice recordings.

Should the evidence otherwise be excluded?

[31] As the Applicant correctly submitted, the Commission is vested with discretion to inform itself, and this discretion includes permitting a party to adduce evidence. It is uncontroversial that the Evidence Act 1995 (Cth) does not apply to the Commission, however this is not a licence to ignore the rules.

[32] Clearly, the Recordings have probative value and are relevant to whether the Applicant was unfairly dismissed. There is no basis in my view to deprive the Respondent of key evidence aimed at proving the conduct for which the Applicant was dismissed.

Conclusion

[33] For the above reasons, I am satisfied and find that the Recordings do not contravene the relevant legislation and there is no compelling reason as to why this evidence should otherwise be excluded. The evidence can therefore be admitted in these proceedings.

[34] The matter will now be programmed for hearing.”

McGlashan v MSS Security Pty Limited (2022) FWC 3304 delivered 21 December 2022 per Dean DP