Covert surveillance by an employer uncovers some misconduct … but leads to a $7,500 personal grievance!

In a recent decision by the Employment Relations Authority an employer was ordered to remove a warning from an employee’s record and to pay $7,500.  The written warning had been issued following a covert surveillance operation of the employee.

The employer had concerns about the accuracy of the employee’s time recording.  A brief initial chat was had with the employee who offered a fair explanation in regard to those concerns.

The employer was not satisfied and set about a covert surveillance of the employee.  According to the Authority, this was the first point at which the employer took the wrong step.

Shortly after, the employer confronted the employee and, without telling him that he had been watched, asked whether the employee’s time record for that day was truthful and accurate.  The employee said that it was.  According to the Authority, this was the second point at which the employer took the wrong step.

Although the employee explained some of the discrepancies, the employer was not satisfied and set up a formal disciplinary meeting.  The employer was ambiguous about the policies and procedures it was alleged that the employee was in breach of, but still gave a written warning.  According to the Authority, this was the third point at which the employer took the wrong step.

Any decision by an employer pertaining to an employee, particularly in disciplinary proceedings, must be justified.  The Authority found that the employer:

1. Did not adequately raise its concerns with the employee prior to the decision to warn him.  After the initial concerns, the employer should have properly investigated.  Such investigation would have shown that the employee had told the truth, and had in fact been nominated by a fellow employee for a commendation for ‘going above and beyond’.
2. Did not give the employee a reasonable opportunity to respond to its concerns before warning him.  Subsequent correspondence by the employer suggested that when the employee was confronted about the surveillance, dismissal was a very real consideration.  In such a situation there is a very heavy onus on the employer to give the employee a genuine opportunity to prepare a response to the allegation.
3. Did not genuinely consider the employee’s explanations before deciding to warn him.  Everything about the process suggested that the employer had already decided to implement some kind of discipline.  It is always important to ensure that real consideration is taken of an employee’s explanation.

Covert surveillance of itself does not necessarily give rise to grounds for a personal grievance; it may be permitted by the terms of the employment agreement.  However the actions that follow are of absolute importance in ensuring that you don’t end up on the wrong side of the law.

If you have concerns about your disciplinary practice, or if you have ended up on the wrong side of such practice, feel free to give us a call on (04) 4736850.