Unfair dismissal and workplace surveillance

The NSW Workplace Surveillance Act prohibits the covert surveillance of employees in the workplace.  A Full Bench of the Fair Work Commission has granted reasonably rare leave for permission to appeal an unfair dismissal case decision on the basis that it is arguable that the Commissioner who decided the case erred by deciding that a recording of workplace surveillance of an incident upon which the dismissal was based was taken without the employee’s consent and was thus unlawful. The Commissioner thus refused to admit the footage into evidence.

On appeal the employer argued that even if consent was required and even if it was not obtained the Commissioner had a discretion to admit in into evidence and that in failing to do so there was an appealable error.

“The appellant raised four grounds justifying permission to appeal being granted:

  1. That the Commissioner failed to provide adequate reasons (or any reasons) for rejecting the appellant’s argument that the CCTV surveillance was carried out with the respondent’s agreement and was therefore not obtained unlawfully.
  2. The Commissioner erred by proceeding on the basis that if the CCTV footage did not comply with the WS Act, they were inadmissible. There is nothing in the WS Act which requires such a result. Rather, the Commissioner should have considered whether to exclude the CCTV footage as a matter of discretion, guided by the provisions of s 138 of the Evidence Act 1995 (Cth). The Commissioner’s approach was inconsistent with the correct approach for the admissibility of such evidence in other decisions of the Commission; see: Hail Creek Coal Pty Ltd v CFMEU (2004) 143 IR 354; [2004] AIRC 670(‘Hail Creek’) at [48]-[50], [56], [57]; Walker v Mittagong Sands Pty Limited t/as Cowra Quartz [2010] FWA 9440at [62]-[72]; Haslam v Fazche Pty Ltd [2013] FWC 5593 at [11]-[14]; Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO [2018] FWC 1824 at [93]-[100].
  3. The Commissioner erred in the exercise of that discretion by his finding that the breach of safety ‘is not of sufficient magnitude to warrant a determination to override the WS Act.’ Further, the Commissioner failed to have regard to material matters in the exercise of that discretion; namely:
  • the probative value and importance of the CCTV footage in the proceeding;
  • the respondent’s awareness of the CCTV footage;
  • the respondent’s acknowledgement of his conduct; and
  • other matters set out in s 138 of the Evidence Act 1995.
  1. By finding that the conduct of the respondent did not create an imminent risk of serious injury, the Commissioner failed to apply the correct approach for determining a summary dismissal under the Code; namely, whether the employer believed on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal. In addition, this finding was a significant error of fact, given the history of the applicant’s employment, including earlier warnings for similar behaviour and the risks associated with the appellant’s business reputation……………….Although not expressly stated, it could be assumed that the Commissioner rejected the admission of the CCTV evidence as a matter of discretion by taking into account, inter alia, the WS Act; see: Hail Creek. Assuming the Commissioner excluded the evidence as a matter of discretion, a question arises as to whether the exercise of discretion miscarried, in the sense that the Commissioner failed to consider material matters, (as set out in grounds three and four of the permission to appeal grounds), which might have outweighed his findings that the CCTV footage had been obtained illegally (assuming it had been). We consider an arguable case has been established as to this question. When viewed in this way, we are satisfied there is an arguable case that the Commissioner’s decision was attended by error, and the error could have made a difference to the outcome, thereby constituting a significant error. However, it is unnecessary for us to express a concluded view on this matter at this stage.

Secondly, s 590 of the Act empowers the Commission, in relation to any matter before it, to inform itself in any manner the Commission considers appropriate. There is no limitation or restriction on that inquiry, including presumably, by permitting the Commission to accept evidence that may, or may not, have been obtained illegally, under the WS Act, or as defined in s 138 of the Evidence Act 1995 (Cth) (the ‘Evidence Act’). The Evidence Act does not exclude all evidence that has been obtained illegally or improperly from being admitted. Rather, s 138 allows such evidence to be admitted, provided it is more desirable than undesirable to do so. Section 138 reads as follows:

“Discretion to exclude improperly or illegally obtained evidence

(1)  Evidence that was obtained:

(a)  improperly or in contravention of an Australian law; or

(b)  in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)  Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a)  did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b)  made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)  Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)  the probative value of the evidence; and

(b)  the importance of the evidence in the proceeding; and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d)  the gravity of the impropriety or contravention; and

(e)  whether the impropriety or contravention was deliberate or reckless; and

(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

In any event, the Commission is not bound by the strict rules of evidence and the Evidence Act, while a useful guide, would not ordinarily be strictly applicable to matters before the Commission. Accordingly, we consider that an arguable case has been established that the Commissioner’s finding that the inadmissibility of the CCTV footage, because it was said to have been illegally obtained, was an error. The error may have altered the outcome of the case, thereby constituting a significant error. Similarly, we express no final view of this matter.

Thirdly, s 14 of the WS Act provides for an exemption to the provisions of the WS Act where the employee has agreed to the carrying out of the surveillance on the premises. The appellant relies on the respondent’s knowledge of, and direct involvement in, the installation of the CCTV equipment, as his agreement, or at least, his ‘implied’ agreement, to the carrying out of the surveillance, which it submits satisfied the s 14 compliance exemption. It submits that the Decision disclosed no reason why the Commissioner rejected the appellant’s submissions in respect to the s 14 exemption argument. Moreover, it submits the evidence was contrary to the finding of the Commissioner, in that he did not accept that the respondent was aware of, and had been involved in, the installation of the CCTV equipment.

A failure to provide adequate reasons, including a failure to disclose the steps in the reasoning process which led to the decision maker’s conclusions, can be an error of law, if the decision maker is under a duty to give reasons. There is no doubt this duty applies to Members of the Commission. In Barach v University of New South Wales (2010) 194 IR 259, a Full Bench of Fair Work Australia (as the Commission was then styled) set out the principles on the duty of a Member to give adequate reasons for a decision. At [16], the Full Bench said:

“[16] The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.”

See also: Edwards v Giudice [1999] FCA 1836 and Ellawala v Australia Postal Corporation Print S5109.

It does not appear that the Commissioner provided any reasons for rejecting the appellant’s submissions on a significant matter of contention in the case. This was an apparent error. Further, we consider it arguable that the Commissioner’s discretion miscarried, if he did not give any weight, or sufficient weight to material matters which would tell in favour of the appellant’s arguments.

Fourthly, we are not aware of any single member decisions, let alone Full Bench authority, which have dealt with alleged non-compliance with the WS Act in the context of a summary dismissal under the Code. We consider this case raises new and novel issues in the Commission’s unfair dismissal jurisdiction, for which Full Bench guidance may be necessary. Permission to appeal should also be granted on that basis.

CONCLUSION

As we have mentioned, the Decision subject to appeal was made under Part 3-2 of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision, unless the Full Bench considers that it is in the public interest to do so. For the reasons we have given, we are satisfied that it is in the public interest to grant permission to appeal. We order accordingly.

The parties will be shortly advised as to further proceedings and directions in respect to the disposition of the substantive appeal.”

Krav Maga Defence Institute Pty Ltd T/A KMDI v Markovitch (2019) FWCFB 263 delivered 17 January 2019 per Sams DP, Gostencnik DP and McKinnon C