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I spy, workplace style
George Orwell must have been a troubled man.
In 1984 he envisaged a world of totalitarian rule where (amongst other horrible things) the Government's Big Brother kept an eye on you by watching through your television.
The book was, of course, written in 1948 – and when we finally arrived at 1984, a number of commentators said how happy they were that we had not transformed into Orwell's totalitarian state.
Some aspects of Orwell's world have now, however, seemingly come to pass. In particular, the technology associated with surveillance has now become so advanced that someone could be watching you right now – and you would have no way of actually knowing.
Spy cameras can be made with lenses the size of pinheads. Keyhole satellites can look down upon us – even through cloud cover – with enough resolution to read a newspaper headline.
And as a recent case illustrates, this technology has also found its way into New Zealand's employment law.
The case concerns an employee who was employed as a cashier in a restaurant attached to a motor inn. She had been in her job for about two years, and earned between $30,000 and $32,000 a year. Her employer became suspicious about her when the employee started wearing what her boss has described as "expensive looking" jewellery and clothes. Concerns were heightened when a co-worker allegedly found a cloth bag containing $270 under the restaurant's till.
It was at this point that the employer decided to engage a private investigator – who, in turn, installed a hidden surveillance camera in the restaurant. This camera recorded footage of the employee allegedly committing a number of inappropriate acts – particularly including taking cash out of the till using a complex system of running totals on the eftpos machine, and then removing money.
The employer confronted the employee with this information. In a subsequent meeting, the employee allegedly admitted stealing on two particular nights, and gave $800 in cash back to her employer.
That was not the end of the matter, however. The employer asked an accountant to undertake an audit of the till tapes and eftpos receipts. On the basis of the audit information, the employer alleges that, over a period of time, the employee pocketed over $93,000.
The employer referred the matter to the Police, who brought criminal proceedings. The employee has pleaded not guilty to 15 charges of theft as a servant. A depositions hearing in the Tauranga District Court has now concluded. It has been determined that the employee has a case to answer, and she will appear in the District Court again in February.
Perhaps the interesting aspect of this case is the use by the employer of surveillance technology – presumably in order to satisfy itself of suspected (ongoing) wrongdoing, and possibly also to provide information about the method of wrongdoing, and extent of loss.
Curiously – and despite what might otherwise be considered stringent privacy legislation – the use of surveillance equipment is acceptable under New Zealand law in certain circumstances.
The Privacy Commissioner has commented that it is best practice for employers to notify employees if video surveillance is contemplated as a possibility in the workplace. This opinion is, however, balanced against a conclusion that circumstances may exist for a specific offence to be investigated by covert means – without any prior warning to the affected employee.
Put simply, an employer should have reasonable grounds for suspicion of wrongdoing before commencing a covert operation such as the one in this case.
Further, whilst an employer in New Zealand bears some strict obligations to consult with employees about changes in the workplace, it is not required to consult (either with individual employees or unions) about the introduction of surveillance technology in such circumstances.
This means that the installation of a surveillance camera in circumstances such as in this case may be done without the need to inform anybody in the workplace.
This case provides an example of a situation where an employer may legitimately use covert surveillance technology to spy on an employee. It is an area which, however, should be approached with care – and in which specific circumstances need to exist before such action will generally be regarded as acceptable under employment law.
