(... well, not technically, anyway.)

"I didn’t do it.  Nobody saw me do it.  You can’t prove anything”.

In case you’re wondering, that’s a quote from a famous mischief and wrong-doer – Bart Simpson.

But isn’t it something that you can imagine coming out of the mouth of a mischievous employee.
But here’s the thing:  what if you did do it?  And I have a recording of you doing it?  And I can prove everything?

Shouldn’t this (as Bart would say) be a “no-brainer””?  The employee should lose his job, right?

Snapped but, is it legal?

Well, in the recent case of Ravnjak v Wellington International Airport Ltd an employee faced with precisely this situation attempted to get off.

Mr Ravnjak was a Duty Manager at Wellington Airport.  There was a room at the airport – in the Emergency Operations Centre – to which it was said that Mr Ravnjak should not have access in the normal course of his work.  The employer suspected, however, that Mr Ravnjak was accessing the room.

To prove it, the employer installed a camera in the room – without Mr Ravnjak’s knowledge.  It appears that the camera captured footage which caused the employer to make a decision to dismiss Mr Ravnjak.

Mr Ravnjak claimed that his dismissal was unfair.  A principal argument advanced by him was that the evidence which had been used as the basis for his dismissal had been improperly obtained.

It turned out that the camera had been installed by a person who was a licensed private investigator.  There is legislation in New Zealand which regulates the way in which private investigators must behave.  Section 52 of the relevant Act provides that a private investigator should not obtain video footage of a person without their consent – and if they do so, any such recording should be inadmissible as evidence “in any civil proceeding”.

So Mr Ravnjak argued that the images of him were inadmissible in the proceeding before the Employment Relations Authority (in which he challenged his dismissal).

Rules of Evidence & the Employment Relations Authority

But hang on a minute:  the traditional rules of evidence don’t apply to the Employment Relations Authority.  Section 160 of the Employment Relations Act allows it to take into account any evidence and information as it thinks fit – whether strictly legal evidence or not.

The Employment Court held that the information obtained by the covert camera was technically inadmissible – but that the Authority had discretion to admit it.  Further, the Court held that the Authority would have to weigh a number of considerations – including whether a fair and reasonable employer would have acted in this way to obtain the footage – but also whether (in effect) the employer’s allegations against the employee had been substantiated.

This seems like a sensible outcome to me.