A coal sector employer has been prevented from using a video recording of an employee’s offensive remarks about the company and its management, as part of disciplinary proceedings.

FEDERAL Court of Australia Justice Neil McKerracher last week ruled a Griffin Coal Mining boilermaker who was also a site-based union representative was entitled to injunctive relief to restrain the company’s use of the video recording.

The footage, taken by a lapel camera fixed to the middle of a security guard’s chest, captured the employee’s conversation with a ranger at the entrance to the Griffin Coal mine.

While discussions originally centred on a traffic management plan for a protest that was scheduled for the following day, the employee’s conversation with the ranger, described as an ‘old friend’, eventually turned to ‘adverse’ and ‘colourful’ comments about his employer.

In a disciplinary hearing, Griffin Coal described the employee’s comments as including racially abusive language to describe company owners, and violent and profane language in relation to a contractor of the company.

The company considered the language used would amount to a breach of its Code of Ethics and Conduct, and Disciplinary Conduct Action Policy as well as the Mines Safety and Inspection Act 1994 (WA) and the Racial Discrimination Act 1975.

However, the employee’s account was that the conversation with the ranger was a private conversation in which he expressed his personal views. He said he did not at any time recall seeing the security guard wearing a camera or surveillance device, and argued that the recording was taken in breach of the Surveillance Devices Act 1998 (WA).

While Justice McKerracher had ‘no doubt’ that the employee was ‘well and truly more than content’ two security guards to be hearing the remarks he was making about the company, he believed there was ‘an arguable’ case that it was ‘not a conversation which could reasonably have been expected to be overheard by any other person’.

“In those circumstances, arguably it would be a private conversation which should not have been recorded,” Justice McKerracher said.

While he believed the ‘balance of convenience’ strongly favoured the ‘conservative course of preserving the status quo’, Justice McKerracher concluded by saying the decision did not mean Griffin Coal cannot proceed with its consideration of the employee’s conduct by relying on an account from the security guard rather than the video recording.

Click here to view the decision.

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