Thieving employee fails in CCTV footage privacy complaint

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Thieving employee fails in CCTV footage privacy complaint

An employee dismissed for stealing from a pharmacy store has failed in her bid to convince the Office of the Australian Information Commissioner (OAIC) that the disclosure of CCTV to her employer, which identified her in the act, breached her privacy. Shortly after an investigation into the theft, she was dismissed.

The complainant was an employee of a retail store. On 14 August 2019, the complainant attended a pharmacy store with a colleague while both were wearing their employer’s uniform. The complainant’s manager became aware of suggestions that the complaint had stolen an item from the pharmacy.

On 16 August 2019, the manager attended the pharmacy and spoke to the pharmacy manager, asking him to check and confirm on CCTV footage whether, at a particular time and date, two individuals wearing the uniform of the employer’s store had taken an item. As is normal in modern pharmacists, CCTV is installed to deter the theft of items such as cosmetics, with signage commonly displayed advising customers that they are being filmed.

Later that day, the pharmacy manager phoned the employer and confirmed that the CCTV footage revealed the individuals had stolen an item. The employer attended the pharmacy, viewed the footage, and identified the complainant as one of the individuals. During the viewing, the manager recorded CCTV footage of the incident on his mobile phone.

On 22 August 2019, the complainant attended the pharmacy, apologised for her actions and paid for the stolen product. Subsequently, the employer showed her the CCTV footage he had recorded and terminated her employment.

The complainant’s submission to the OAIC was that the pharmacy had interfered with her privacy by disclosing her `personal information’ to their employer and allowing the employer to record CCTV footage containing their image. By way of relief, she sought an apology and compensation.

In contrast, the pharmacy sought to rely on the privacy exemption that they had reasonable belief to suspect the complainant had engaged in unlawful activity and that the disclosure of the footage to the employer was necessary in order for them to take appropriate action in the matter (ultimately being her dismissal).

Commissioner Angelene Falk accepted that the primary purpose of the CCTV footage was to prevent crime, ensure public safety, and review suspected incidents of theft for referral to the police or other action. She accepted that the footage had been provided to the employer for this purpose after they had provided specific details of the alleged incident and the likely consequences for the complainant.

While expressing some concern about the employer filming the footage, she acknowledged that the pharmacy took reasonable steps to protect the information they collected, consistent with privacy principles. These included that the footage was automatically retaped over after ten days and stored in a locked office, minimising the risk of unauthorised access.

Consequently, Commissioner Falk determined that the pharmacy had not interfered with the complainant’s privacy and dismissed her complaint.

‘XO’ and ‘XP’, ‘XQ’ (Privacy) [2021] AICmr 37 (9 July 2021)

For queries about surveillance, use of CCTV footage, or any other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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