A high school teacher has accused a school's principal of bullying and breaching his privacy by spying on him with closed-circuit television (CCTV) in the playground. As reported by the Herald Sun, George Stingas, an English teacher at Lalor North Secondary College in Victoria, is alleging in the Victorian Civil and Administrative Tribunal that principal Denise Veltre viewed footage from playground surveillance cameras without his knowledge to 'check up' on him after he was previously accused of avoiding yard duty.

These allegations should pique the interest of all schools, given the mix of governance, policy management, privacy, human resources and work health and safety issues that arise here.

Before we proceed to the lessons learned, we note that the school in this instance is a Victorian government school which is subject to the Information Privacy Act 2000 (Vic).

Most non-government schools in Victoria (and other states and territories) only need to comply with the federal Privacy Act 1998 (Cth) (Privacy Act). Interestingly, whilst the issue of breach of privacy is raised in this claim the Privacy Act, which applies to non-government schools, expressly excludes records collected and used directly as part of the employment relationship. Arguably this exclusion would give non-government schools a 'get out of jail free card' at least as far as potential privacy breaches are concerned. Non-government schools should however be aware of a number of other minefields.

Legal surveillance

Employers such as schools routinely and legitimately monitor their employees' activity in the workplace. Normally, such monitoring ensures that employees are using work resources, such as email and the internet, appropriately. As part of good governance, schools should have human resources policies in place to set standards about email and internet usage and a surveillance policy to ensure that appropriate notice requirements for personal information collection are met, and that staff personal information is used, stored and disposed of appropriately. This also means that staff should know what their personal information can and will be used for.

Schools legitimately install surveillance cameras in and around school premises as part of their security and safety procedures to ensure that they provide a safe environment for students, staff and visitors. Under most circumstances this would constitute reasonable measures to address the risk of intruders, vandalism, and unauthorised student exits, amongst other things.

However, schools should be aware that a number of states and territories also have legislation in place regulating the installation, use and maintenance of surveillance devices such as video cameras in the workplace. In NSW the Workplace Surveillance Act 2005 (NSW) (and similar legislation in the ACT) makes it illegal to film employees covertly while they are at work (or at school, in the school employment context) unless certain notification and consultation conditions have been met.

The (roughly) equivalent Victorian legislation (the Surveillance Devices Act 2009 (Vic)) relating to video surveillance prohibits employers recording in toilets, washrooms, change rooms and lactation rooms. In addition, the Victorian legislation and the Western Australian Surveillance Devices Act 2011 (WA) have more general prohibitions against recording of 'private activities' or 'private conversations' unless the parties ought reasonably to know that they might be observed. The obvious question that follows is whether any activity by an employee at work (other than in toilets, washrooms, change rooms etc) is a 'private activity'. Whichever way that question is answered, the use of the recording of what may or may not be a 'private activity' can only be done with the consent of the parties or where it is 'reasonably necessary to protect the lawful interests' of the recorder.

Footage from CCTV cameras may regularly be viewed as part of the security procedures at a school. This should be the main purpose of these cameras, and the surveillance of employees should only follow incidentally.

Privacy

Even though the federal Privacy Act does not apply to records collected and used in the normal course of employment, there are various restrictions in other legislation which limit the dissemination and use of employees’ medical information, providing employee information to union officials, and generally providing employee information to third parties if that is not reasonably part of the employment relationship.

As a matter of risk-management, a school should not collect personal information unless the collection and use of the information can be justified as reasonably necessary for, or directly related to, one or more of its core functions, activities, and obligations.

Good Human Resources

It is important that employee records are kept securely and treated with the highest levels of confidentiality, due to the sensitive nature of the information they contain. To do anything less is to undermine the trust and good faith necessary for the employment relationship.  Furthermore, employees should (and, in some jurisdictions, must) be made aware of electronic surveillance such as CCTV, and of emails, and internet usage, and what may be done with the information collected. To ensure that appropriate measures are taken, policies must be developed, communicated, and transparently enforced.

Policies

What kind of policies are relevant to a situation as faced by Lalor North Secondary College? Here are some examples:

Email and Internet use: if a school does not already have a clear email and internet use policy for its staff, it should introduce one explaining how staff usage will be monitored and what usage is inappropriate. This policy should also set out the expectations of how these resources should be used, as well as disciplinary action if the policy is breached. It is good practice (and critical in NSW, Vic and ACT) that this information is provided to new employees before they start work or if introducing monitoring for the first time. Existing employees should be warned and given an opportunity to comment prior to the monitoring commencing.

CCTV Surveillance: if the topic of CCTV surveillance is not addressed elsewhere in another school policy, a specific surveillance policy should be introduced. An effective surveillance policy will  inform staff that such footage is being collected, and what it is being collected for. A school may also want to erect signs which fulfill this purpose, and remind staff, visitors and others that they are under such surveillance. Once again, staff should be warned in advance, including warning new employees before they start.

Bullying (Staff): while we won’t explore the interface between surveillance and bullying in this article, suffice to say that it is critical that schools have a comprehensive staff bullying policy in place as part of their work health and safety program as unreasonable surveillance activity targeting a particular individual could amount to bullying in certain circumstances.

Policy Integration: a policy should be designed to be followed in practice. It should not just live in a dusty binder on a shelf, in a PDF manual sitting on a network drive or intranet, never to be opened. For policies to be effective, they must be implemented and understood. In fact, a policy is usually only legally effective (in an action against an employee, or in a defence against one) if an employer can clearly demonstrate that it has been properly implemented and understood. As part of a school's human resources procedures, staff should be provided training with respect to high risk policies, and the consequences of breaching these policies should be clearly communicated.

More trouble for the school?

Since the incident at Lalor North Secondary College, the school has apparently broadened its surveillance policy 'to verify if a teacher has completed their yard duty', however according to the Herald Sun, this amendment is apparently inconsistent with Victorian Education Department rules banning the use of CCTV to monitor the performance of students or staff.

This article originally incorrectly cited Lalor Secondary College as the school involved. The school involved was in fact Lalor North Secondary College. We apologise for this error.

About the authors

Xenia Hammon is the  Editor – School Governance. She can be contacted here.

Svetlana Pozydajew is a Business Manager, Not-For-Profit & Schools - CompliSpace. She can be contacted here.