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Video Surveillance - the act of a Desperate employer?
In case you haven't noticed, something has occurred over the last month which has made it unacceptable to plan social events on a Monday night.
Desperate Housewives is the name of the show, and if you are not watching it (and talking about it over coffee on Tuesday mornings) you are really missing out.
It goes something like this: there are a whole lot of dysfunctional (yet extremely well groomed and good looking) women all living in close proximity. One of their number has recently died, and there is something of a mystery surrounding the circumstances of her death – and some secrets that she has left behind.
We don't know what the secrets are, but there is only one way to find out - keep watching (or, alternatively, go on to the internet and find out what the Americans already know!).
It seems that employment problems can sometimes take on a similar profile. It is not uncommon for an employer to suspect that something untoward is occurring (or perhaps has occurred in the past), yet there is no objective evidence upon which to found those suspicions.
The answer for many employers is also similar - keep watching. Employers do this, of course, by introducing covert video surveillance. This act can raise a number of interesting issues - particularly related to New Zealand's privacy legislation.
In brief, it is completely acceptable to use video cameras in the workplace if your employees are aware that they are there. Take, for example, employees in a casino – or even at the checkout of the supermarket (next time you are paying for your groceries, look up to your right and smile at the black hemisphere on the ceiling).
More difficult issues arise, however, where employees are unaware of the existence of the video surveillance. An employer must have reasonable grounds for suspecting untoward behaviour – and must also reasonably conclude that the only way to prove it is by the introduction of a hidden camera (or other recording device).
Even when a camera can be lawfully used, an employer has to be careful that the evidence obtained is treated in a way which complies with the rules of procedural fairness. As a recent case illustrates, there are pitfalls for employers if they get it wrong.
The employer in Logan v Hagal Company Limited (Unreported, Employment Relations Authority, Auckland, 13 July 2005) owned a health store in Hamilton, in which Ms Logan was employed as a retail assistant. At the end of 2003 the employer became aware of financial discrepancies relating to the store - and in early 2004 raised this issue with its employees, including Logan. In essence, the employer was concerned that whilst its computer indicated that adequate stocks were being maintained, the shelves seemed to be relatively empty.
In March 2004, without notifying staff, the employer installed video cameras. The employer's main motive was to determine whether the store was the victim of shoplifting.
Instead, however, the video cameras captured four separate incidents involving Logan – each one of which led the employer to believe that she had either been taking stock or money from the store.
One can imagine that, viewing video material of this nature, the employer might be inclined to jump to conclusions. It is precisely for that purpose that the law requires an employer – in any case of suspected misconduct – to allow the employee an adequate opportunity to explain the actions which have been captured on tape.
In this case, the employer notified the employee that it had obtained evidence of "apparent unauthorised handling or mishandling of cash and/or product", and invited the employee to attend a disciplinary meeting. It did not, however, provide the employee with specific details of the allegation.
Unfortunately for all concerned, the employee's father passed away at about this time. The meeting had to be postponed.
Finally, when the meeting did take place, a video tape was played for Logan. She was then invited to provide her response.
The Employment Relations Authority found that this aspect of the employer's procedure was flawed. It held that the employer should have provided more detail about the allegations to Logan in advance of the meeting – and, given that the employer had an opportunity to watch the tapes on numerous occasions, a similar opportunity should have been extended to the employee before requiring her formal response. On that basis, the Authority concluded that the employer's decision to dismiss Logan following the meeting was procedurally unfair.
At the same time, however, the Authority took into account the video evidence, which indicated that Logan had failed to adhere to the standard procedures required of her – and, in doing so, had breached the trust that the employer required of her. It accordingly reduced the remedies that otherwise would have been payable to her.
In the end, the employer was ordered to pay Logan three months' pay, and $5,000 compensation - with each award being reduced by 50% to take account of Logan’s contributory conduct.
The employer may have walked away from this case feeling like it was the wrongdoer. From its perspective, it had video evidence which it was sure could justify dismissal. Its failure to follow a proper procedure did, however, mean that, despite the employee’s wrongdoing, it was also punished.
