UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00031

DELIVERED : FRIday, 24 January 2025

FILE NO. : U 79 OF 2023

Applicant

AND

PICARD, AURELIE ESTELLE

Respondent

CatchWords : Video and audio recording made without knowledge and consent – admissibility into evidence – reasonably necessary – protection of  lawful interests

Legislation : Surveillance Devices Act 1998 (WA)

Result : Admission of Evidence is Refused

Representation:

Applicant : Mr Thomas Ghigo

Respondent : Ms Aurelie Picard

Reasons for Decision

1         During the hearing of an application for unfair dismissal the applicant sought to submit video recordings he made on his mobile of the events on 27 September 2023.

2         The respondent objects to the video recordings being admitted.  The respondent says the recordings were made without the knowledge and without the consent of the other persons being recorded.  The respondent says the recordings were made in breach of the Surveillance Devices Act 1998 (WA) (Surveillance Act) and should not be admitted into evidence.  The respondent says that the applicant deliberately provoked another person into reacting when the applicant knew that he was covertly recording their exchange.  The respondent submits that the recordings do not capture all the events of that day and omit vital information.  The respondent says she believes the recording was premeditated and planned because the applicant had engaged in similar conduct with former employers.

3         The applicant acknowledges that the recordings were made without the knowledge and consent of the those recorded.  However, the applicant says that the admission of the recordings into evidence is permissible under s 9(1) and s 9(2) of the Surveillance Act.  The applicant says that the recordings dispassionately depict the events.  The applicant admits that he has previously covertly recorded exchanges with former employers and that he records to protect himself.

4         At the directions hearing on 4 April 2024 the applicant referred to material that he wished to provide at the hearing but was reluctant to provide some material prior to hearing in accordance with preparatory steps.  The applicant submitted that the provision of the material would enable the respondent to change her story, and the applicant wanted to let the respondent lie and then show that the respondent changed her story.  The applicant was advised that the purpose of each party providing an outline of evidence along with any supporting documents or material was to ensure a fair and efficient hearing.  The applicant was informed at the directions hearing that any material he sought to tender into evidence at the hearing, that he had not previously provided in accordance with the directions issued, may result in an adjournment of the hearing, a decision that the material may not be admitted, or dismissal of his application.

5         On 6 May 2024 the applicant filed outlines of witness evidence and documents, including photographs, he intended to rely upon at the hearing.  The applicant did not provide the recordings.

6         At the hearing on 5 September 2024, the applicant sought to tender into evidence the recordings.  The respondent objected to the admission of the recordings.

7         The Commission determined that the recordings were prima facie about matters relevant to the issues raised in the claim.  Therefore, the Commission ought to hear the evidence for the purposes of determining whether the recordings should be admitted.  Under the Surveillance Act, to be admissible, the Commission needs to find that the communication of the recordings was a communication not more than is reasonably necessary for the protection of the lawful interests of the person making the communication.

8         The recordings are video recordings made on the applicant’s mobile phone.  The applicant says he had put his mobile phone device in his pocket when recording.  The video image is black, and the recording is audio only.  The audio recording is of dialogue spoken in the French language.  Consequently, a transcription of the dialogue into English was required.

9         The transcription service describes the quality of the audio as poor and notes that there were difficulties in transcription because of overlapping speech and poor sound quality.

10      Section 5(1)(b) and s 5(3)(d) of the Surveillance Act provides:

(1) Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device –

 …

 (b) to record a private conversation to which that person is a party.

(3) Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if —

 …

 (d) a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.

Further s 9(1) and s 9(2)(a)(ix) and s 9(3)(a)(i) and (iii) and s 9(3)(b) provides:

(1) Subject to subsection (2), a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.

 …

(2) Subsection (1) does not apply —

 (a) where the publication or communication is made —

  …

 (ix) in the course of any legal proceedings;

 …

(3) Subsection (2) only provides a defence if the publication or communication —

 (a) is not more than is reasonably necessary —

  (i) in the public interest;

 …

  (iii) for the protection of the lawful interests of the person making the publication or communication;

 (b) is made to a person who has, or is believed on reasonable grounds by the person making the publication or communication to have, such an interest in the private conversation or activity as to make the publication or communication reasonable under the circumstances in which it is made;

11      Clearly the law prohibits publication and communications of recordings of conversations made without the knowledge and consent of those being recorded except in limited circumstances.  I must be satisfied that there is a compelling reason to admit recordings made without the knowledge and consent of the other persons.

12      The applicant submits that the recordings are relevant and important for his case because the recordings provide the truth of the events that occurred on 27 September 2023.  The applicant says the recordings tell the truth of the events.

13      The parties substantially agree on the events on 27 September 2023.  It is not in dispute that the applicant took the keys from the vehicle and would not return them when requested.  It is not in dispute that the applicant was physically tackled, pushed to the ground and held down on the ground to retrieve the motor vehicle keys.  The applicant says that it was he who was assaulted.

14      The parties do not disagree that both people involved in the altercation were injured.  Each party has submitted photographic evidence of the injuries sustained.

15      It is not in dispute that the applicant threw a bottle in the direction of another employee.  The parties do not agree that the applicant aimed the bottle at a place on the wall above and to the side of the other person’s head.  However, the audio recording does not reveal the direction at which the bottled was aimed.

16      The audio recordings are of an exchange of accusations and responses, at times people are shouting over the top of each other.

17      The respondent does not deny that the altercations took place. The respondent does not deny that the applicant was assaulted and says that the other employee involved was counselled on the inappropriate behaviour and the consequences of dismissal should such behaviour be repeated.

18      The audio recordings do not provide anything further than that of the oral and documentary evidence given to date and set out in outlines and submissions.  The applicant submits his actions were justified because he was provoked.  However, the audio recordings do not assist in deciding whether there was provocation of the applicant.

19      It is my view that the recordings are not reasonably necessary for the protection of the lawful interests of the applicant.  A compelling reason to admit the recordings made without the knowledge and consent of those persons recorded has not been established.  Accordingly, I rule that the recordings are not to be admitted.