Peter Cullen, Partner at Cullen – The Employment Law Firm, discusses the Thompson and Clark controversy and how the boundaries of privacy in the workplace are being eroded with growing surveillance of employees.
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The newspapers have been full of the public sector’s ties with private security and investigation firm Thompson and Clark.
It was reported a number of government agencies have used the firm to investigate or spy on people. A Crown-owned company, Southern Response, allegedly engaged Thompson and Clark to spy on Canterbury earthquake claimants. This prompted the Government to order a State Services Commission inquiry.
In 2007, Solid Energy, another state-owned company, was reported to have engaged Thompson and Clark to infiltrate a group of protesters, placing people undercover within the group. At the time prime minister Helen Clark deemed it “unacceptable behaviour from a state-owned enterprise”.
An animal rights activist, Rochelle Rees, spoke up about her experience being spied on. In 2008 she discovered her partner at the time had been paid by the police for 10 years to spy on her and other activists. In 2010 she found a tracking device under her car. She says it was linked to Thompson and Clark.
Most people would hate to be spied on. Everyone has secrets or mistakes they hope never see the light of day. Indeed, mass media and the internet mean these blemishes, if published, can destroy a person’s reputation forever.
The right to privacy is recognised in the Universal Declaration of Human Rights. The New Zealand Bill of Rights protects us from unreasonable search or seizure of our person, property, correspondence, or otherwise.
The government needs a reasonable basis in order to intrude on our privacy. Did the government agencies have good reason each time they engaged Thompson and Clark? Perhaps activists were going too far and people felt threatened? Perhaps not?
Sometimes the pendulum swings too far. The Independent Police Conduct Authority has been investigating the legality of a police raid on journalist Nicky Hager’s home. Police obtained a search warrant despite Hager not being “a suspect of any offending” and did not inform the judge of key information. The search warrant was unlawful.
Individuals working for private investigation firms are governed by the Private Security Personnel and Private Investigators Act. It provides some checks on what these private investigators, security consultants, and the like can do. Complaints can be brought to the licensing authority and disciplinary action taken. But the scope of this legislation has its limitations.
The importance of government institutions to provide protection must be balanced against an individual’s right to privacy.
In employment, the boundaries of privacy are receding. Some employers in the United States microchip employees and can track their movements. Many company vehicles have tracking devices.
In one sense this is very intrusive as vehicles might be used in the evenings and weekends for private purposes, but the tracking device will monitor everything. On the other hand, it may be important to public safety as the employer can see if the worker is speeding or running of red lights.
The case of Manu Taefu, a security guard, heard earlier this year illustrates these issues.
Taefu’s employer, Allied Security, said he had not properly carried out checks of clients’ properties and had falsified his log book. Allied Security said that CCTV footage supported its allegations.
Allied Security also alleged Taefu had been ticketed for driving through a red light.
Allied Security dismissed Taefu and deducted the cost of the ticket for the red light from his final pay. It later realised that Taefu was not driving at the time of the infringement.
Taefu took his case to the Employment Relations Authority and was successful. Allied Security had not given Taefu the complaints against him or the CCTV footage or GPS information. He had been unlawfully dismissed.
Employers using surveillance should be open about it and tell employees what is being recorded. Good policies setting this out are important.
It is an offence to intentionally intercept private communication using an interception device such as a bug, dictaphone, or a voice recording on your iPhone. If employers are open about what they are recording, that is a different matter.
We live in a time where technology is advancing, as is the intrusion into our private lives.
CCTV monitors the streets of Wellington. Employers search Facebook for details of applicants’ personal lives. Work computers can be analysed to see exactly what you’ve been looking at and spending work time on.
The conduct of those monitoring us is governed by extremely varied legislation.
In the case of government agencies there is little control other than an expectation of exemplary integrity and conduct. Because of this the right to privacy is even more important.
The State Services Commission is investigating all state service agencies’ engagement with Thompson and Clark. It may well result in the identification of areas where individuals’ privacy should be better protected than it currently is. New guidelines might be issued or legislation proposed.
Peter Cullen works for both employers and employees and has built upon his earlier experience gained as an industrial advocate. In 1994 Peter established his own firm, Cullen-The Employment Law Firm. Peter convened the Wellington District Law Society Employment Law Committee from its inception until 2004. He is a regular speaker and commentator to the news media on industrial law issues. Peter has represented clients before the various employment institutions including the Court of Appeal. He uses his legal skills to impart clients with helpful advice upon which to base their decisions. His strengths lie in his in-depth knowledge of New Zealand employment law and his abilities as an advocate.
Contact Peter at peter@cullenlaw.co.nz You can also connect with Cullen Law via LinkedIn
