Most workplaces utilise some form of surveillance, the most obvious of which is monitoring the use of email and internet. Surveillance can also extend to the use of GPS tracking in company vehicles or the use of location services in devices, like mobile phones or tablets.
The use of GPS trackers in vehicles and devices is most common in roles where employees work away from a desk, at multiple different locations throughout the day – like couriers or delivery drivers, tradespersons or travelling salespersons.
In NSW, as with other forms of workplace surveillance, GPS tracking is governed by the Workplace Surveillance Act 2005 (NSW) which requires employers to notify employees about the surveillance and having a clear notice on the vehicle or device that it is the subject of tracking. Surveillance legislation in other states and territories also generally provide that surveillance devices cannot be used without consent.
Whilst the reasons for employers implementing GPS tracking will often be legitimate, such as for safety, employees can often be wary about technology which tracks and records their location. To address employee concerns, it is important that employers are upfront about:
This should be outlined to employees in the notice that the surveillance will be carried out or in a workplace surveillance policy. The policy should also state that unauthorised tampering or interfering with GPS tracking devices can result in disciplinary action, including termination of employment.
In Colella v Aroona P&T Pty Ltd T/A Aroona Alliance [2017] FWC 5533, the Fair Work Commission (FWC) decided an unfair dismissal case involving GPS tracking, alleged absenteeism and interference with a GPS device.
In that decision it was held that while the employer relied on flawed GPS data to dismiss an employee, the employee’s dismissal was not unfair.
The employee in question performed duties that involved attending different water treatment plants in Perth. For some jobs, the employee was required to ring an operator to report his attendance to reset the alarm. The employer received an anonymous complaint which claimed that the employee was playing golf at the times he was to be working, the employer conducted an investigation into the employee’s attendance.
The investigation revealed irregularities in the employee’s attendance. The employer then alleged that the employee fraudulently claimed that he had worked and submitted work orders from his Personal Digital Assistant (PDA) on 21 separate occurrences. In support of the allegation, the employer relied on data from the employee’s ID and Access Card, which indicated that the employee did not attend the relevant worksite, as well as the employee’s PDA GPS location service, which identified the employee’s location as his home address.
The FWC found that the PDA GPS data was inconclusive because the employee used an empty foil “Twisties” chip packet as a Faraday cage which he knew would obstruct the GPS function in the PDA from recording his location. As a result, the PDA GPS data recorded the employee’s location to be his home address. The employer had been aware that the employee used the chip packet since the introduction of the PDA devices because of his concerns about privacy but they did not stop the employee from continuing to cover the PDA.
Rather, the FWC placed greater emphasis on the telephone records. These records demonstrated that, on all but three occasions, the employee was at different worksites and had made the required phone call to the operator.
On the basis that there were three occasions of unexplained absence, the FWC held that the employer had a valid reason to terminate the employee’s employment and that the dismissal was not harsh, unjust or unreasonable.
Whilst the PDA GPS data was not relied upon by the FWC, it held that the employee was “deliberately mischievous” and his actions with the PDA “were deliberate in trying to hide his whereabouts and deceive his employer.”
Lessons for employers
Whilst workplace surveillance through GPS or other tracking devices maybe useful for employers, careful thought should be given to:
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