Katrina Saunders v Bengalla Mining Company Pty Ltd – [2025] FWC 658
KEY TAKEAWAYS:
Video evidence proved crucial in a recent Fair Work Commission unfair dismissal case. The case offers the following key learnings for investigators:
- objective evidence like video footage can be decisive when employees deny allegations of wrongdoing, particularly if it is analysed and verified by experts
- reviewing previous surveillance records after identifying one incident of alleged wrongdoing can reveal a pattern of employee behaviour
- conducting re-enactments can be an effective way to test the plausibility of an employee’s explanations, demonstrating thoroughness of the investigation.
The case
A long-serving New South Wales mine employee was dismissed for interacting with her mobile phone while operating haul trucks, violating the company’s safety policy. She denied the allegations, and later claimed, for the first time in her unfair dismissal case, that her phone was with her in the truck cabin on some occasions and inadvertently turned on after being charged.
The investigation
The investigation was initiated after video footage from the mining company’s Operator Alertness System (OAS) — which uses infrared sensors and cameras to detect fatigue and distraction events — showed a distraction event in June 2024 involving the employee that was suspected to be mobile phone use. Although the mobile phone was not visible in the footage, the employee repeatedly looked down at the passenger seat for prolonged periods and flashes of light and bright spots also appeared on her face during the alleged incidents.
In line with standard processes, the mining company’s Technology Coordinator retrieved previous footage and found nine additional instances of similar alleged behaviour by the employee. The Technology Coordinator had previous experience detecting mobile phone use, identifying approximately 12 instances over a five-year period, with only one known error. In addition, the company had dismissed a number of employees in the same year for admitting to using their mobile phones after being shown similar OAS footage.
During the investigation, the company:
- showed the employee the video evidence
- conducted re-enactments of her explanations and sent a video of the re-enactments to the employee (who did not take part)
- provided opportunities for the employee to respond to the evidence and allowed a support person — a union delegate — to be present during investigation interviews.
FWC decision
The Commission dismissed the employee’s unfair dismissal application, finding:
- five of the 10 videos showed evidence of a mobile phone being turned on in the truck cab — the conclusion of an expert witness
- the employee’s changing explanations undermined her credibility
- the company conducted a procedurally fair investigation
- the company’s safety policy, which banned mobile phone use in mine vehicles, was reasonable
- it was appropriate for the company to ask the employee’s support person not to speak during interviews as the two could confer privately or during breaks
- the seriousness of the conduct and the potential risk it posed to the safety of others justified the employee’s dismissal.
Key learnings for investigators
- Secure video or other surveillance evidence as early as possible, review and arrange expert analysis to strengthen findings.
- Review past surveillance footage to identify potential patterns of similar employee behaviour.
- Test employee explanations through re-enactments that offer employees the opportunity to take part or view footage of the re-enactment.
- Carefully document employee responses and be attentive to inconsistencies.
- Maintain procedural fairness throughout the investigation by giving employees the opportunity to respond to all evidence.
Five-point guide to surveillance evidence
Our firm looked at the pros and cons of using surveillance evidence in workplace investigations and put forward a five-point practical guide on the collection and use of such evidence in this recent article.
More information
Q Workplace Solutions’ team of experienced and legally qualified investigators are trusted by public and private organisations, including ASX-listed companies and government entities, to investigate complex and often highly sensitive allegations of employee wrongdoing. They also undertake reviews of organisations, divisions or units, and provide advisory support and training to internal investigators and teams.
The firm’s dedicated training arm, Q Workplace Training, runs regular investigations training workshops on topics such as trauma-informed and sexual harassment investigations and also offers bespoke training tailored to organisational needs and contexts. The 2025 training calendar is available here.
