The Fair Work Commission’s decisions as to when it is legitimate for employers to use a recording, audio or video, in support of disciplinary action against employees are inconsistent, and frankly difficult to follow. Whilst it is understandable that an employer will struggle to make use of such evidence if covertly obtained, the distinction per se between relevant evidence in a case involving an allegation of misconduct and other conduct relied upon by an employer in an unfair dismissal is more difficult to follow.
“In my view there is no reason why the College should not have made use of the video recording in its investigation of Ms McLoghlin’s conduct. Ms Grima said that she did not know who had made the video but it seems likely that it was a student. The school’s policy that governs electronic devices in class applies to students. It does not prevent the College’s use of video recordings for disciplinary purposes. I note that the recording was not prohibited by the Surveillance Devices Act 1999 (Vic) because the relevant circumstances were not private ones (see ss 11(1) and s 3). More generally, I consider that it was not inappropriate for the College to use the recording in this case because it constituted evidence of misconduct by a staff member towards a student. Similarly, it is appropriate for the Commission to have regard to the video in these proceedings because of its forensic value. I find that there is no prejudice to Ms McLoghlin associated with the use of the video; although she said that the video had not told the whole story, she was able to give evidence of that story, and in particular about what was occurring prior to the start of the recording.”
McLoghlin v St Columba’s College Ltd [2025] FWC 1554 delivered 5 June 2025 per Colman DP