As an employer, you might think it a good idea to use CCTV cameras in the workplace to confirm your suspicions about an employee’s poor performance. But you could find yourself facing unfair dismissal charges.
Krav Maga Defence Institute is an organisation teaching self-defence techniques based on the training provided to the Israeli Army. It has several branches, including four gyms in the Eastern suburbs of Sydney.
Recently, the Institute summarily dismissed Saar Markovitch, one of its manager/instructors at the Bondi Junction gym, on the grounds that he failed to supervise clients adequately and thereby endangered their safety while they were undertaking physical exercise.
Mr Markovitch made a judicial objection to the dismissal, on the grounds that it had not been made in accordance with the rules laid down in the Fair Work Act and therefore could not be dealt with by the Fair Work Commission.
The employer at the gym struck back, saying that he had complied with the small business code when making the dismissal.
The issue at stake was evidence gained by the use of video surveillance cameras.
Commissioner Bernie Riordan of the FWC said: “I accept that the reason the CCTV equipment is installed is primarily for the protection of employees and students. . . and that in this regard – as evidenced by video footage – the behaviour of the Mr Markovitch is unsatisfactory”.
However, Krav Maga admitted that Mr Markovitch had not been told that video from the CCTV cameras could also be used in disciplinary actions.
Commissioner Riordan addad: “If the manager/instructor was a partner rather than an employee, this explanation would be satisfactory. However, the Krav Maga Defence Institute has emphatically stated that the Mr Markovitch was an employee.
“As such, Mr Markovitch is entitled to the protections afforded to employees under the Workplace Surveillance Act 2005, i.e., that there must be signs in the workplace and two weeks’ notice in writing from the employer before the CCTV system starts recording.
“Neither of these two privacy measures have been initiated by the Krav Maga Defence Institute, and therefore the recordings. . . do not comply with the Workplace Surveillance Act, and as a result, I find the CCTV recordings to be inadmissible.
“Although the owner testified that signs had been installed at the Bondi Junction gym identifying that video cameras are in operation, proof of the existence of these signs has not been provided. I accept the evidence of the Mr Malkovitch that these signs do not exist.”
No imminent risk of injury
“Krav Maga Defence Institute has no evidence that a serious safety incident has occurred, and therefore, the provisions of the Small Business Code have not been met.”
Commissioner Riordan dismissed the jurisdictional objection and undertook to issue directions for the substantive matter in the near future.
In a separate case in Melbourne, a terminated employee, Tawanda Gadzikwa, applied for unfair dismissal remedy. During the hearing into the matter, it was revealed that the employee “for his own protection”, had made secret voice recordings of his work colleagues without their consent.
The Fair Work Commission observed that this is unfair to those who are secretly recorded because they are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view.
The person recording, however, can do all of these things, and unfairly put himself at an advantage.
In the end, The FWC ruled that “the Department dismissed [the employee] for the reason it stated, namely non-performance of duties arising from his unauthorised absences”.
It was noted, however, that if the dismissal was found to be harsh, unjust or unreasonable, the secret recording could constitute a separate valid reason for dismissal.
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