Pros and cons of using surveillance evidence in workplace investigations

KEY TAKEAWAYS:

1. Legally obtained, quality surveillance evidence can be highly advantageous in workplace investigations because it can:

• provide an independent, direct and contemporaneous record of a workplace incident or alleged instance of misconduct — therefore it carries high probative value
• corroborative evidence of the circumstances surrounding an incident or allegation of misconduct
• save time and cost collecting other evidence such as witness statements, which can be less reliable.

Surveillance evidence is not useful when:

• it is not lawfully obtained
• it is of poor audio and or visual quality or is inconclusive
• the precise time of the alleged misconduct is unknown and the time and cost involved in reviewing extensive surveillance records outweigh the potential benefit.

Clear workplace policies covering the conduct, storage and use of workplace surveillance are important to establish transparency and accountability of surveillance activities.

Investigators should follow clear evidence handling and recording protocols to preserve the integrity of surveillance evidence and maintain employee privacy.

Electronic surveillance has become an accepted feature of modern-day workplaces. But when workplace incidents or misconduct occurs, how useful is surveillance data in establishing the facts of what occurred?

This article delves into the pros and cons of using surveillance evidence in workplace investigations and provides detailed insights on how to collect, review, disclose and report on such evidence. It follows an earlier article that examined the types of workplace surveillance technologies now in use, employee privacy and the current regulatory landscape.

Critically, workplace surveillance needs to be legal and transparent. It should be conducted in accordance with relevant laws, clearly documented in workplace policies and disclosed to employees, such as through public notices and employment contracts. Workplace policies should also clearly state how surveillance records will be securely stored, to protect employee privacy, and how they will be ethically used, for example for employee safety, performance monitoring and discipline.

Surveillance pros

The key advantages surveillance evidence offers over other forms of evidence is that it can provide:

• an independent, direct and contemporaneous record of a workplace incident or event, and
• corroborative evidence of the circumstances surrounding an incident (i.e., what happened immediately before or after the incident in question).

If used lawfully and appropriately, electronic surveillance can save employers and investigators an enormous amount of time that might otherwise have been spent gathering other forms of evidence.

It also carries significant weight in an investigation. Surveillance records can provide direct and objective evidence of a workplace incident or event as it occurred. This real-time record is generally more reliable than witness accounts, which can be affected by memory, bias or perception.

Reliable video surveillance records, in particular, have high probative value because they can show not only the order of events leading to a workplace incident but also provide a window into the demeanour or behaviour of employees.

These traits mean that surveillance evidence can also helpfully assist investigators with:

• establishing the precise date and time of an event
• identifying relevant witnesses and respondents or new lines of enquiry
• determining the nature or characterisation of the misconduct
• pinpointing aggravating or mitigating factors relevant to factual findings.

For example, in a recent Fair Work Commission unfair dismissal case, video surveillance was relied on by an employer to show an employee’s “intention … to conceal his behaviour” by “looking for the coast to be clear” before putting a piece of company equipment in his private vehicle without approval.¹

Surveillance cons

While at first glance surveillance may seem like the holy grail of evidence, in some circumstances, as set out below, it is not particularly useful to investigators.

• It can be regularly lost or destroyed. For example, data can often be overwritten within a certain timeframe due to storage limitations.
• It has not been lawfully obtained or collected and stored in accordance with workplace policies. If unsure about the lawfulness or admissibility of surveillance evidence obtain legal advice before it is accessed or reviewed.
• It is of poor quality (visual, audio, or both) or does not include sound, particularly when the alleged misconduct centres around inappropriate or unreasonable comments.
• The precise time of the alleged misconduct is unknown, and the time and cost involved in reviewing extensive surveillance records do not justify the potential benefit.
• The camera surveillance is obstructed or does not adequately capture the conduct. For example, it is not uncommon for perpetrators to deliberately face away from cameras if their location is known or for visual obstructions (such as other people or objects) to prevent a direct line of sight.

The case of Peter Mulhall v Direct Freight (Qld) Pty Ltd t/a Direct Freight Express reinforces the limitations of CCTV surveillance evidence when it comes to establishing details of a workplace incident. In this case, the FWC accepted the employee’s submission that surveillance evidence relied on to establish that they had stolen a box containing a laptop did not clearly display the markings on the box (to properly identify the box as the one containing the laptop) and also did not appear to include footage of a box which conclusively matched the proportions of the box that was allegedly stolen.²

Guidance on handling surveillance evidence

Well-considered surveillance evidence handling protocols help preserve the integrity of surveillance evidence, maintain employee privacy and safeguard investigator wellbeing, particularly in matters involving sensitive and distressing events. To be effective, evidence handling and recording protocols should address each of these key areas: plan, collect, review, disclose and report.

Plan

• confirm with HR and IT what surveillance records, if any, are available and where they are held — by the employer or a third-party. Keep in mind that third parties may not agree to release surveillance unless requested to do so by the police.
• verify with legal counsel that the records have been lawfully obtained and comply with workplace policies and privacy legislation and protocols before accessing them.
• consider the nature of the surveillance content and whether it is necessary (i.e., material for investigation and your findings) to access the records. If it is, then consider how you will maintain employee privacy as far as possible, including by saving the surveillance in a secure location and labelling it as confidential material (if applicable).
• set up a system to document what surveillance records are accessed, when and why, and include a copy of any expert advice you have relied on in reaching your decision.

Collect

• request that potentially relevant electronic surveillance evidence be secured as soon as practical for review before it is overwritten or otherwise lost or destroyed.
• check surveillance locations to verify if the event or incident you are investigating is likely to have been captured. Consult someone who has direct access to review surveillance records, so that they can verify precisely what locations are captured by the cameras and from what angles, during what times the cameras operate, and how long any captured footage is retained before it is over-written or destroyed.
• confine the scope of your surveillance request for effective collection, including providing specifics about the precise location, camera angle, date and time where possible. Tip: always request footage just before and just after the alleged incident — it is better to have too much than not enough, and this will give you the broader context surrounding the alleged event.
• document any limitations you encounter in accessing or collecting surveillance evidence. For example, record if you are unable to obtain footage that captures a specific location or part of the location.
• verify the accuracy of timestamps upon collection of the surveillance footage.
• save the surveillance record/s in their original file format and store securely, limiting access to others as far as possible.

Review

• consider using transcription services to add captions and timestamps to audio or visual surveillance evidence to assist with the effective review of the information.
• limit review of surveillance records, particularly video surveillance, to the most relevant sections to maintain employee privacy.
• take comprehensive notes as you review, capturing details in a log or chronology, to reduce the need to review the records again later.
• it can also be useful to take screenshots of critical content (if appropriate), so this can later be used in any report produced.
• document who reviewed the surveillance records, which records, for what purpose, and whether there were any limitations associated with the review. For example, if there were any issues with the quality or visibility of the footage.
• in circumstances where electronic surveillance is no longer available, consider interviewing people who have previously reviewed the records and could provide a verbal account of their recollection.

Disclose

• consider carefully, as part of a fair process, the need to show a respondent or other witnesses surveillance evidence to enable them to respond. Evidence should only be disclosed if necessary for procedural fairness. For content of a sexual or sensitive nature, carefully consider any required disclosure and document why and how the disclosure was made.
• give thought to how to provide this opportunity to witnesses and respondents while maintaining confidentiality as far as possible. For example, it may not be appropriate to email a copy of the records to a respondent, but the record owner may be agreeable to allowing the respondent to review the data in their offices under HR supervision.

Report

• document in the investigation report what surveillance evidence was accessed and why it was or was not relied on to make factual findings. Also note surveillance evidence that could not be accessed and why, and any limitations this has on making findings.
• balance the level of detail needed in the report by a decision-maker with employee confidentiality. This could involve redacting identifying information or attaching surveillance data or screenshots in a separate password protected attachment only accessible by the decision maker (or other persons listed in the report).

¹  [2024] FWC 3495 (De Beer, Josephus v Icon Water Limited)

² [2016] FWC 58 (Mulhall’s Case)

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 departments, to investigate complex and often highly sensitive allegations of employee wrongdoing. They also undertake reviews of organisations, divisions or units, and provide training, coaching and external advisory support to internal investigators and teams.

To find out more about how we can support you and your team, contact us on 1300 944 049.