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The real big brother
Several years ago reality was something that we tried to escape by watching television. Nowadays, of course, reality is television.
It seems that a feature of the 21st century is the way in which we have quickly become accustomed to watching ourselves through the mercurial eye of the video camera - and the grainy footage of our lives that it provides.
Not all of us, it seems, are happy about being characters in this real life drama - particularly, where the outcome may have consequences for our employment.
A very interesting argument about video tape footage was played out in the course of the recent decision of the Employment Relations Authority in Wellington City Transport Limited v Paualaisa and the New Zealand Tramways Union (Unreported, Employment Relations Authority, Wellington, 17 April 2002).
The case had its origins in a number of complaints which had been made by members of the public about a bus driver. It appears that the essence of these complaints was that Mr Paualaisa was behaving improperly in the way in which he collected money for tickets.
The employer regarded the complaints as very serious indeed. It responded by installing a hidden surveillance camera in the bus which Mr Paualaisa was employed to drive. This step was taken because the employer concluded that camera surveillance was the most reliable means for obtaining evidence about potential wrongdoing.
Video surveillance of Mr Paualaisa provided powerful evidence for the employer. During the course of three shifts, the footage revealed that Mr Paualaisa had, on 13 different occasions, received money from passengers, but had not issued a ticket (presumably leading to the conclusion that he was keeping certain money for which no account was made through the issue of a ticket).
The employer confronted Mr Paualaisa about the evidence which it had obtained. It provided him with an edited copy of the tape and asked for his response. Mr Paualaisa responded by objecting to the process which had been adopted by his employer. He argued that use of the hidden surveillance camera was contrary to certain provisions in his collective agreement.
Amongst other things, Mr Paualaisa's objection (which was also taken up by his union) related to a provision in the collective agreement obliging the employer to consult with employees about the introduction of new technology which had the potential to alter conditions of work. Mr Paualaisa said that neither he nor his union had been consulted about the use of hidden cameras in his workplace.
The Authority rejected Mr Paualaisa's objections. It found that the employer had been justified in acting upon the complaints that had been received. Importantly, the Authority held that no consultation was required about the use of hidden video cameras because the introduction of this new technology did not alter Mr Paualaisa's conditions of work. Bus drivers' conditions of work remained the same in that all employees were required properly to account for money received through the prescribed ticketing procedures. The Authority held that this requirement had not been altered by the possibility of video surveillance.
In reaching its decision the Authority noted that the Privacy Commissioner had commented that it would be best practice for employers to notify employees if video surveillance was contemplated as a possibility. This was, however, balanced against the conclusion that circumstances might exist for a specific offence to be investigated with some limited covert video surveillance.
The Authority also commented that the position would have been different had the collective agreement contained provisions constraining the employee's use of devices such as covert video cameras. The agreement in this case was silent in that point (although the Authority observed that the union might negotiate for different terms in the collective in future negotiations).
This case serves as a reminder to employers that, in certain circumstances, hidden video cameras may provide useful evidence in a disciplinary inquiry. Employers should be aware that best practice will normally require them to inform their employees about the possibility of such surveillance. Specific incidents - particularly where evidence might only be obtained through covert surveillance - may, however, justify the use of hidden cameras without any consultation at all. As this decision confirms, employers who take such action will usually be free from criticism provided that any applicable employment agreement does not contain provisions constraining their ability to take such steps.
