Your rights: Videotape led to dismissal

Q. I was working for two different employers in the aged care industry. I was working for one employer when an incident occurred at work, which was recorded on video.

I was sent a letter to attend a disciplinary meeting, as the employer thought that I had not taken adequate care of an elderly resident. The outcome of the meeting was that I tendered my resignation. My employer did not wish to terminate my employment, but said they were going to lower my rate of pay.

A few days latter I was asked by my other employer to attend a disciplinary meeting. This meeting was about the incident that occurred at the other workplace. The outcome of the meeting was that I was dismissed.

The first employer had forwarded a copy of the video to the second employer. The managers at both workplaces have been close friends for several years.

Has forwarding of the videotape broken any privacy laws and have I been unfairly dismissed?

A. The Privacy Act sets out the rules about collecting, storing and disseminating personal information. Generally, no one is entitled to collect, keep and pass on any of your personal information.

The Privacy Act is very wide in scope. Video recordings of any person can amount to the collection and storage of personal information.

If your employer has been videotaping you, it is highly likely the Privacy Act will apply. Your employer would need to obtain your consent to videotape you, keep the tape or pass it on.

The appropriate way to obtain your consent is to have you sign a written privacy waiver. Privacy waivers usually specify the extent to which you have consented to having your personal information recorded, kept and passed on. It is very important that the purpose for which personal information is collected, kept or passed on is clearly understood.

Some employers believe that having a clause in employment agreements that states, "You agree that during the course of your employment video recorders may be operating" amounts to an adequate privacy waiver. However, I believe such clauses are quite inadequate.

If your first employer passed on the videotape without having an adequate privacy waiver, it is likely to have breached the Privacy Act and its obligation not to damage your trust and confidence that it will act fairly and reasonably. I suggest you consider the terms of your employment agreement and any privacy policies that were in place, if any.

Your resignation from that job may amount to an unjustified (constructive) dismissal. An unjustified constructive dismissal can arise if you were forced to resign due to a breach of a fundamental term of your employment agreement. Your rate of pay could be regarded as a fundamental term of your employment. I suggest that you seek specific specialist advice from an employment law professional or a union if you are a member of one.

Your dismissal from the second job may have been unjustified. The onus is on the employer to justify any decision to dismiss.

Generally, a dismissal is justified if it is something that a fair and reasonable employer might have done after conducting a fair investigation. For an investigation to be fair, you must have been advised before any dismissal meeting what was to be discussed, that you were entitled to have a support person or representative present and that your dismissal is a possible outcome.

A fair investigation also means that you were given a fair opportunity to respond to the allegations against you before a decision is made regarding your future employment. I would be surprised if your employer could justify your dismissal if you were simply called into a meeting without any prior notice and then dismissed.

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