DIETER RAVNJAK v WELLINGTON INTERNATIONAL AIRPORT Ltd NZEmpC WN

 
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[2011] NZEmpC 31

IN THE EMPLOYMENT COURT WELLINGTON

WRC 12/11

In the Matter of proceedings removed in part from the Employment Relations Authority

BETWEEN
Dieter Ravnjak
Plaintiff
and
Wellington International Airport Limited
Defendant
Counsel

Paul McBride, counsel for plaintiff

David Burton and Charles McGuinness, counsel for defendant

Application for determination of evidence admissibility — plaintiff was a duty manager at Wellington Airport — installation of covert surveillance camera by an Airport employee who also ran a private investigation firm — located in a room the plaintiff was not supposed to have had access to in the normal course of this duties — recordings made led to an investigation being launched into plaintiff's alleged misconduct which led to his dismissal — whether the manner in which the surveillance was installed and monitored rendered it inadmissible under s52 Private Investigators and Security Guards Act 1974 (private investigator not to take photographs or made recordings without consent) — whether information emanating from recordings (if inadmissible) could be used.

At issue was whether the manner in which the surveillance was installed and monitored rendered it inadmissible under s52 Private Investigators and Security Guards Act 1974 (“PISGA”) (private investigators not to take photographs or make recordings without consent), and if inadmissible, whether information that resulted from the knowledge gained from the surveillance cameras could be used.

Held: When H installed and used the covert surveillance cameras and associated recording equipment he did so in the course of, or in connection with, the business of a private investigator pursuant to s52(1) PISGA. The fact that he did not render an invoice did not change his role, nor did the fact that he installed the camera during a period he was working for WIAL. He had been asked to install the camera because of his expertise as a licensed private investigator, rather than for his expertise in his normal role of managing parking and taxis.

Section 52 was enacted in 1974 before digital/electronic technologies were in use, but to limit the section to that era's technology would be to emasculate it. Adopting a purposive approach as set out in s5 Interpretation Act 1999, the recordings made and relied on fell within the description of “video tape recording”, or the broader description of “photograph” or “cinematographic film”.

An indirect mechanism in R's individual employment agreement, which incorporated the employee handbook and gave WIAL control of information retained on video and audio recordings, did not constitute R giving the written consent contemplated by s52 PISGA. True informed consent given in writing could not be achieved by very generalised advice in an employee handbook. H's actions were in the nature of private investigation, rather than security guarding. His purpose was to assist WIAL to determine who may have been using the EOC room, and therefore could not come within s4(1)(c) PISGA (definition of security guard). The monitoring of a camera was not the same as installation and operation covered by s4(1)(c) and monitoring under s4(1)(e) dealt with a camera installed for the purpose of detecting the commission of an offence by any person on those premises.

The fact that H did not render an account to WIAL for his services did not mean he was not acting in the course of business as a private investigator and so s52 PISGA did not apply. Section 51, which required the rendering of an account, was for the protection of customers of private investigators to whom money had been paid. H's business clearly met the definition of private investigator in s3(1) PISGA and simply because H agreed not to charge WIAL for his services as a private investigator did not mean that the other provisions of the PISGA did not apply.

The ERA had a broad discretion under s160(2) Employment Relations Act (“ERAct”) (powers of authority) to take into account evidence, including evidence described as “strictly legal evidence or not”. But this was subject to the express and absolute inadmissibility prescribed by s52(2) PISGA. The recordings were inadmissible.

It was a more difficult question to determine whether the employer could use information gained from interviews, in the course of which R was asked questions that relied on information revealed by the unlawful recordings. There was no presumptive or absolute doctrine prohibiting consumption of the fruit of a poisonous tree. When exercising the broad powers under s160(2) however, consideration of the balancing criteria in s103A ERAct was required. In the context of this issue, this required consideration of whether a fair and reasonable employer would in all the circumstances have relied on information gained from inquiries based on the unlawfully obtained recordings.

There was no suggestion that the WIAL managers who investigated R's alleged misconduct suspected the recordings on which they relied may have been obtained unlawfully, and an international airport was an area in which it was likely there would be significant covert surveillance of persons. WIAL was therefore not necessarily prohibited from adducing evidence in justification of R's dismissal that was obtained as a result of the surveillance records. Nor would the unlawfulness of the recordings necessarily cause R's dismissal to have been unjustified. It was up to the ERA to determine to what extent evidence emanating from the recordings should be admitted.

Recordings inadmissible under s52(2) PISGA but whether information emanating from them was admissible was to be subject to a balancing exercise by the ERA pursuant to s160(2) and s103A ERAct (test of justification).

  • A. The “video” recordings made and which the defendant seeks to introduce in evidence in the Employment Relations Authority are inadmissible under's 52(2) of the Private Investigators and Security Guards Act 1974.

  • B. Whether information that emanates from these inadmissible recordings is itself admissible in the Employment Relations Authority and whether the defendant was entitled to rely upon the recordings and information that emanated from them in reaching its decision to dismiss the plaintiff, will need to be the subject of a balancing exercise by the Employment Relations Authority pursuant of ss 160( 2) and 103A of the Employment Relations Act 2000 and include the factors identified in this judgment.

  • C. Costs are reserved

REASONS FOR JUDGMENT OF CHIEF JUDGE G L Colgan

Background
1

This judgment decides, as a matter of urgency, the admissibility in evidence of what I will refer to non-technically as a video recording, in personal grievance proceedings currently being investigated by the Employment Relations Authority. The case also raises the broader important question whether, if the video recording was made unlawfully, the employer was entitled to consider and rely on its contents in deciding to dismiss the plaintiff from employment. Also at issue is whether the Authority can consider evidence that is connected to the recording.

2

These questions need to be heard and decided promptly for several reasons. First, Dieter Ravnjak seeks reinstatement to his former position with Wellington International Airport Limited (WIAL). The Authority's investigation of his personal grievance of unjustified dismissal was to have begun on 25 March 2011, but has been stalled by the referral of these questions to the Court under's 178 of the Employment Relations Act 2000 (the Employment Relations Act). Next, the plaintiff has asked the Authority to reopen its investigation into Mr Ravnjak's application for an order for interim reinstatement which the Authority dismissed in February. The grounds of the application to reopen that investigation are based on the alleged inadmissibility of the video recording which I am told the Authority Member viewed and in reliance upon which the Authority declined interim reinstatement.

3

For the purposes of determining these evidence admissibility and associated issues, the following is a brief account of the relevant facts.

4

Until his dismissal in late 2010, Mr Ravnjak was a duty manager and had for a time been the Terminal Services Manager at Wellington Airport. Unbeknown to him, WIAL arranged for the installation of a covert surveillance camera in a room of its Emergency Operations Centre (EOC), to which it said Mr Ravnjak should not have had access in the normal course of his duties. As a result of observations and analysis of recordings of Mr Ravnjak taken from the camera in the room, WIAL launched an investigation into his alleged misconduct as a result of which he was dismissed. WIAL relied substantially on observations and analysis of the recordings in making its decision to dismiss Mr Ravnjak. In opposing his application for interim reinstatement in employment before the Employment Relations Authority, it again relied on the contents of the video.

5

Shortly before the Authority's substantive investigation meeting was to commence, counsel for Mr Ravnjak's received a signed WIAL witness statement of Cedric Hardiman dated 15 March 2011, dealing with the manner in which the surveillance camera and associated equipment were installed and monitored. As a result of receiving Mr Hardiman's brief of evidence, counsel, Mr McBride, objected to the admissibility of the video recordings pursuant to s 52 of the Private Investigators and Security Guards Act 1974 (the PISG Act) which provides as follows:

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