Can your employer monitor you at work?

The issue of employers monitoring their employees became a national talking point in 2023. In August, the unfair dismissal case of former IAG employee Suzie Cheiko made headlines. Ms Cheiko had her keystrokes monitored by IAG while she worked from home. She was fired after this surveillance revealed that she did not meet the minimum keystrokes expected from her per hour.

The Fair Work Commission ruled that her dismissal had not been unfair. The data IAG had received from its surveillance of her laptop showed that on some days, she registered no key strokes at all. It was therefore found that the company had a valid reason to fire her for misconduct.

In this case, IAG’s surveillance of Ms Cheiko’s laptop was completely legal. But when is an employer’s surveillance of an employee not legal? Are they, for instance, able to surveil you via your computer’s webcam? And does legality depend on which state you live in?

In this article, we detail the law concerning the monitoring of employees in the workplace. And we share the story of a worker who was illegally monitored by his boss and was awarded $7,000 for his unfair dismissal claim.

Australia leads the world in workplace monitoring

According to a recent report by global law firm Herbert Smith Freehills, Australian employers rank number one in the world when it comes to surveilling employees. The report found that a whopping 90 per cent of Australian employers are doing so. Elsewhere in the globe, the UK came in second for workplace surveillance, while Asia was third.

The report stated that workplace monitoring of employees “soared” during the pandemic. It also revealed that one Australian software vendor received a 200 per cent increase in requests to trial received of workplace monitoring software in the space of two months.“Given hybrid working is likely to continue … it’s highly likely that surveillance and monitoring will increase,” the report stated.

How are Australian employers monitoring employees?

Employers are monitoring their employees via various means. This includes accessing their webcam and random screenshot monitoring. Also keystroke and audio monitoring, in addition to geo-locational tracking. CCTV is also of course a long-established method used by employers to monitor their staff.

The rapid rise in workplace surveillance has resulted in a burgeoning industry. A recent study found that there are 500 “bossware” software solutions on the market that help employers monitor their workers’ computers.

“If you’ve got work laptop, the employee is able to surveil your use of that device,” Australian partner at Herbert Smith Freehills Natalie Gaspar told news.com.au. With all these types of workplace monitoring taking place in Australia, the question you may be asking is: are they legal?

Monitoring employees in Australia: What the law says

The question of whether monitoring of employees is legal in Australia comes down to the state or territory you are in. Here, we detail the laws across the country.

Employee monitoring in NSW and the ACT

In New South Wales and the Australian Capital Territory, legislation regarding workplace surveillance is similar. The Workplace Surveillance Act 2005 (NSW) and the Workplace Privacy Act 2011 (ACT) require employers to:

1. Give an employee notice before surveillance begins within a 14-day period. This is unless an alternative notice period is agreed upon in the employment contract.

2. When notifying an employee, inform them of the type of surveillance to be used (e.g., camera, computer, or tracking) and the purpose of the surveillance. The employer must also let them know the start date, the nature of surveillance (continuous or intermittent) and the duration. In the case of the ACT, the specific purposes for which surveillance records may be used and disclosed.

3. Have a policy governing workplace surveillance, and surveillance activities must align with this policy.

4. Ensure CCTV cameras are visible cameras. They must also provide a notice or visible warning to inform employees of their being tracked.

Workplace surveillance in Victoria, WA, SA and NT

Victoria, Western Australia, South Australia and the Northern Territory do not have specific workplace surveillance legislation. The monitoring of employees comes under general legislation that covers surveillance activities.

Generally, the use of video or listening devices is not allowed unless consent is obtained or another exemption applies. This could include when such surveillance is reasonably required to protect an individual’s lawful interests, with the consent of the premises’ occupier. Specifically, Victorian legislation requires employers to gain consent from an employee to install and use tracking devices. It also prohibits employers from installing video or listening devices in certain areas like toilets and change rooms.

Tracking of employees in Queensland and Tasmania

Queensland and Tasmania have the most limited protections for employees when it comes to workplace monitoring. In both states, surveillance legislation only applies to listening devices.

Worker illegally monitored via CCTV wins $7K

Like with Ms Cheiko, the Fair Work Commission has ruled on several unfair dismissal cases involving workers who were surveilled by their boss.The unfair dismissal case Saar Markovitch v Krav Maga Defence Institute Pty Ltd T/A KMDI [2019] involved a worker who was not informed that he was being surveilled at work.

Saar Markovitch began working as a full-time instructor in Krav Maga – an Israeli martial art – at the Krav Maga Defence Institute in Sydney’s Bondi. The gym was owned by his friend, with whom Mr Markovitch served in the Israeli armed forces.

Despite their friendship, the gyms owner had issued Mr Markovitch with written warnings on two occasions. In 2015, he was warned about using his mobile phone while he was meant to supervise a class. In 2017, he received a warning after a student was injured during a class that he was meant to be supervising.

Boss spies on employee via CCTV

On 17 May 2018, the gym’s owner decided to remotely view live CCTV footage of the gym via an app on his phone. The CCTV cameras had only recently been installed. While viewing the footage, the owner noticed that Mr Markovitch was once again on his phone while he was meant to be supervising a class. This led the owner to view historical CCTV footage.

He noticed that Mr Markovitch spent much of his time sitting at the reception desk on his phone. This was a regular occurrence when he was meant to be supervising classes. A few days later, the owner called Mr Markovitch in for a meeting and raised the issue of him regularly using his phone at work. Mr Markovitch claimed that he only spent minimal time on his phone. However, the owner then proceeded to show him CCTV footage of him regularly using his phone.

The law concerning CCTV footage at work

Given the gym was located in New South Wales, the NSW Workplace Surveillance Act 2005 applied. This obligates an employer to give employees 14 days’ notice prior to the commencement of surveillance in the workplace. When it comes to CCTV surveillance specifically, there must also be signs in the workplace telling employees that they may be being watched.

Worker agrees to resign

Fair Work Commission records detailed that Mr Markovitch was “surprised” when shown the historical footage. Seeing that there was incontrovertible evidence of his slacking off, he then signed a letter of resignation. This had been pre-prepared by the gym’s owner. The owner then suggested that Mr Markovitch return to Israel, which he agreed to do. Remaining friends despite the dismissal, Mr Markovitch organised his flight to return to Israel with the owner.

The owner then told him that he could continue to instruct at the gym for around two weeks until they would both depart overseas. This was so Mr Markovitch could “save face” and make it seem like he was returning to Israel for a new job. The owner, however, said that he would be under strict surveillance at the gym.

“Full of emotions”: Worker has change of mind

While Mr Markovitch and the owner had a gentleman’s agreement of sorts, the former’s emotions soon intervened. On the same day as the meeting, he texted the owner to say that he could not teach another class as he was “full of emotions.” Then later that day, he sent an email to the owner saying that he was retracting his resignation.

Worker is dismissed, denied entitlements

In the email, Mr Markovitch said that he had signed the resignation letter under duress. He requested that if he had been let go by the gym, then he required a letter of dismissal. A few days later, the gym’s owner obliged. He provided a letter confirming that Mr Markovitch had been fired effective 21 May 2018 for serious misconduct. He cited the fact that CCTV footage confirmed that he had failed to supervise numerous gym classes.

In the letter, the owner stated that Mr Markovitch’s conduct had posed a risk to the gym’s clients’ health and safety. Also, to its reputation and that it amounted to serious and wilful neglect of his work duties. Finally, the owner stated that Mr Markovitch’s final payment and any outstanding leave entitlement “will be withheld to assist in offsetting the costs incurred by the Company.”

Worker makes case to Fair Work Commission

After being sacked, Mr Markovitch engaged lawyers who successfully forced the gym’s owner to pay him his outstanding salary and entitlements. And 10 months later, he found another job at a competing gym. In that time he had made an unfair dismissal claim with the Fair Work Commission. He did not want to seek reinstatement, but financial compensation.

In his claim, he argued to the Fair Work Commission that the gym’s owner acted illegally in filming him at work. He claimed that the installation of CCTV cameras and the private use of the footage was illegal. Mr Markovitch conceded that his conduct while working at the gym was poor. However, he argued that the owner regularly used what he deemed as illegal CCTV footage to raise concerns about his conduct.

Mr Markovitch also argued that while his conduct was wrong, it did not warrant an immediate dismissal. He said that the fact the owner had agreed for him to initially work a few more shifts contradicted his claim that he needed to be fired immediately.

Boss says surveillance was necessary

The gym’s owner told the Fair Work Commission that he had not apprised his employees about the CCTV surveillance at the gym. He said that he never told them that he could view the footage remotely. Also, that they could be subject to disciplinary action based on what appeared in CCTV footage.

However, the owner maintained that Mr Markovitch knew that the CCTV cameras would be installed. This is because he had authorised the payment for them, although he had been overseas while they were installed. The owner argued that the cameras were principally installed to ensure the protection of his workers and customers.

The owner told the Fair Work Commission that there were signs in the gym warning of CCTV surveillance. However, he did not provide any evidence of this.

Fair Work Commission provides ruling

At Mr Markovitch’s unfair dismissal hearing, the Fair Work Commission favoured his arguments. As the gym had fewer than 15 employees, it was bound by the Small Business Fair Dismissal Code.  This states that an employer can summarily fire an employee if they reasonably believe their conduct was sufficiently serious to warrant it.

The Fair Work Commission found that this was not the case with Mr Markovitch. This was because the owner had offered him to work subsequent shifts after he had agreed to resign. And that this was not a sign that his conduct was sufficiently serious to warrant immediate dismissal.

Footage “obtained illegally”

The Fair Work Commission acknowledged that the gym’s owner decided to fire Mr Markovitch based on his conduct displayed in the CCTV footage. It was found that the CCTV recordings “were not conducted in accordance with the NSW Workplace Surveillance Act 2005.” The commission declared that the CCTV footage was “obtained illegally.” And therefore, the provisions of the Small Business Code “have not been met.”

Finding that Mr Markovitch’s dismissal had been unfair, the gym was ordered to pay him $6,924.00 in compensation. The gym’s owner went on to appeal the decision with the Full Bench of the Fair Work Commission. However, this bid failed.

Conclusion to: Can your boss spy on you?

A Whole New Approach is here to offer the expert guidance necessary to ensure the success of your unfair dismissal claim. Having helped 16,000 employees take action via the Fair Work Commission, we have a deep understanding of the Fair Work system. We are not lawyers. AWNA are considered by many to be the leading workplace advisors and commentators. Our team can assist you if you have faced unfair dismissal, a sham redundancy or a forced resignation. We can also support you in cases of discrimination, workplace harassment, or any violation of your workplace rights.

Time is of the essence, as you have only 21 days from your dismissal date to file a claim with the Fair Work Commission. For a confidential consultation on how we can assist you, contact us at 1800 333 666.

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