Privacy is becoming an increasingly important issue as technological developments make it easier to observe people when they are not expecting it. The issue is all the more problematic in the employment context where surveillance legislation operates to limit covert recording. In the case of Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248, the Federal Court considered whether a recording of “particularly adverse and colourful comments” made by an employee about his employer were admissible in disciplinary proceedings which may have resulted in the termination of Mr Chappell’s employment.

The offending conduct

Mr Chappell was a boilermaker employed by Griffin Coal Mining Company Pty Ltd at the Griffin Coal Mine. Mr Chappell had been employed at the mine for 29 years and had been one of the mine’s site union representatives for 12 years.

As part of bargaining for a new enterprise agreement, industrial action was planned for late June 2016. A community protest was also scheduled for the same time.

The day before the industrial action and protest, Mr Chappell attended one of the gates to the mine to discuss a traffic management plan with representatives from the Shire of Collie (the Shire). One of the Shire’s representatives was a ranger from the Shire. Mr Chappell and the ranger had known each other for approximately 20 years.

After the other Shire Representatives had left, Mr Chappell and the ranger proceeded to have a candid conversation in which Mr Chappell used “offensive”, “violent”, and “profane” language to describe his views of his employer. During this conversation, two security guards engaged by the mine, came over and stood near Mr Chappell. One of the security guards had a lapel camera, fixed to the middle of his chest, which recorded the conversation.

Ten weeks later, the employer directed Mr Chappell to attend an inquiry into allegations of misconduct arising from the recording. During that inquiry Mr Chappell was given the opportunity to view the footage, and it was put to him that the language used amounted to a breach of the mine’s code of ethics, the Mines Safety and Inspection Act 1994 (WA) and the Racial Discrimination Act 1975 (Cth).

Mr Chappell commenced proceedings in the Federal Court seeking an interlocutory injunction, restraining his employer from relying on the recorded footage in any disciplinary action. Mr Chappell argued that by obtaining the footage without his knowledge or consent, it breached the relevant provisions of the Surveillance Devices Act 1998 (WA).

Was it a private conversation?

The Surveillance Devices Act makes it an offence to use a camera to record a “private conversation”. “Private conversation” is defined in the Surveillance Devices Act as:

any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.

Therefore, the issue for the Court to determine was whether there was a reasonable expectation that Mr Chappell’s comments would be overheard. If, considering the circumstances, the Court found that the parties should have reasonably expected to be overheard then the recording would not breach the Surveillance Devices Act.

Mr Chappell initially argued that the he and the ranger were the only parties to the conversation, and that it could not reasonably be expected to be overheard by the security guards. However, this approach was hampered by the Court’s review of the recording. The recording revealed that there were occasions where Mr Chappell explicitly addressed the security guards during the conversation. On that basis, if the conversation was only between Mr Chappell and the ranger, there would surely be an expectation that the guards would overhear it.

Mr Chappell’s argument then shifted. He instead argued that the guards were also parties to the conversation. He stated that, as nobody else was within earshot, it was therefore a private conversation between himself, the ranger, and the guards. If this is the case, the guards would be in breach of the Surveillance Devices Act by recording the private conversation without the consent of all the participants.

Can the employer rely on the recording?

Ultimately, McKerracher J noted that it was not necessary for the present proceedings to come to a final view as to whether the recording breached the Surveillance Devices Act. This was because the proceedings were not concerned with a breach of the Surveillance Devices Act itself, but were concerned with an injunction to prevent the use of the recording. This being so, McKerracher J only needed to determine if Mr Chappell’s position was arguable.

McKerracher J ultimately held that this was the case. McKerracher J considered Mr Chappell’s direction of speaking, his verbal references to the guards, and the fact that nobody else was in earshot. Because of this, it was at least arguable that the guards were parties to a “private conversation” between the four parties.

McKerracher J also considered that the balance of convenience supported preserving the status quo, and therefore preventing the use of the recording. This was because, even if the injunction was granted preventing the use of the recording, the employer could rely on statements of the personal accounts of the security guards as to Mr Chappell’s conduct. Alternatively, the employer could commence proceedings by taking action against Mr Chappell, which would likely involve a conclusive determination on the admissibility of the recordings.

The Court granted the injunctive relief, preventing the employer from using the recording in any disciplinary proceedings.

Lessons for employers

While these proceedings were interlocutory in nature, the case serves as a reminder to employers that, if they wish to rely recordings in disciplinary proceedings, they need to ensure that the recordings are obtained in accordance with the relevant surveillance devices legislation in the jurisdiction in which they are operating.

Indeed, in this case the employer was restrained from using such a recording because Mr Chappell was able to demonstrate that he had an arguable case that the recording breached the Surveillance Devices Act.

However, all is not lost for employers because the decision makes it clear that while the recording must not be used, an employer is well within its rights to rely on statements of the parties to the conversation if they are willing to provide one.

Contributor: Luke Dominish