Staff surveillance: is it legal?

by Cameron Edmond18 Dec 2013
Last month saw three senior executives at Ikea France terminated following an investigation into spying allegations.

The execs, including chief executive Stefan Vanoverbeke, were accused of hiring private detectives to spy on employees, union activists, job applicants and customers, as well as obtaining personal information from police files through fraudulent means, The Guardian reported.

The Telegraph found that Vanoverbeke and other managers accused of spying have been fired by Ikea, who expressed regret and shame over the actions taken by these executives, and has generated a new code of conduct to address the issue.

Ikea released the following statement to HC:

“Two executives are currently being interviewed as a normal part of the investigation. The legal process has been ongoing since 2012 and is still in the initial investigation phase. The normal procedure is that the investigating magistrate is collecting as much information as possible and interviews of IKEA executives could therefore be expected.”

While the leaking of personal data may be a separate issue, workplace surveillance is a common practice in Australia, sanctioned by a number of acts.
Michael Michalandos, partner at Baker & McKenzie, told HC that the law will vary between states and jurisdictions, but in NSW camera, computer and tracking surveillance is allowed whilst an employee is at work under the Workplace Surveillance Act (2005) provided that certain requirements are met.  These requirements include notifying notify the employee of the surveillance before carrying it out.

Section 10 of the act states the notice must be given at least 14 days before the surveillance commences, and an employee may agree to a lesser period of notice. If surveillance of employees at work has already commenced at that workplace (or is due to commence in less than 14 days) ahead of employment, the employee must be given notice before they start work.

The notice must contain the following:
  • The kind of surveillance to be carried out (camera, computer or tracking).
  • How the surveillance will be carried out.
  • When the surveillance will start.
  • Whether the surveillance will be continuous or intermittent.
  • Whether the surveillance will be for a specified limited period or ongoing.
There are additional requirements depending on the nature of the surveillance.  For example, in relation to computer surveillance, the employee must have published a policy on surveillance to the employees in advance and the surveillance must be consistent with that policy.

However, the Act prohibits the use of work surveillance devices when an employee is not at work.  The one exception is computer surveillance of the use by the employee of the employer’s resources or equipment.

“It is becoming quite common for employers to monitor the use of internal email systems. It is also quite common for employers to uncover all sorts of material which is often used to establish misconduct,” Michalandos said, citing instances where employees send database material or other confidential information to competitors.

“We have had an increasing amount of incidents where resigning employees download vast amount of information onto a thumb drive and then walk it to their next employer.  We call it the USB “stick and run”,” Michalandos stated.

“Tracking surveillance is also becoming quite common with salespersons who spend most of the time out of the office.  They record time sheets and often the employer will cross-check against mobile phone records to see if they are actually where they are supposed to be,” he explained.

In regards to using this surveillance to uncover information on employee’s actions outside of work, Michalandos stated that if the actions of an employee are damaging to the business of the employer – despite being outside of it – then this could be used to justify a termination.

“If an employee behaves in a way that is incompatible with their employment, for example the conduct damages key client relationships for which the employee is responsible or even working relationships –   the employer can rely on that to terminate employment,” he explained. A common example of this is an employee making unsavoury comments about a manager or client on social media, making the relationship unworkable.


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