Toll faces Fair Work Australia after using private eyes to spy on employees taking sickies

Transport and logistics company Toll is facing unfair dismissal charges after using private investigators to follow staff who take leave to recover from workplace injuries.

Toll is before Fair Work Australia twice this week facing action by workers who say they were unfairly dismissed, after the transport giant had them followed while on sick leave.

Although WorkSafe and its insurance companies often use private investigators to look into injury or welfare claims, it is unusual for individual companies to spy on their employees.

Toll has justified its surveillance on the basis that it self insures. 

The first case, being heard at Fair Work Australia today, involves former Toll employee Rosa Diehm, who was on sick leave in February while in the process of lodging a WorkCover claim over a back injury she claimed she sustained while working at Toll’s Truganina warehouse, sorting packages for Kmart.

Toll had Diehm followed for a day in February by an investigator who filmed her outside her house and later using a concealed camera at a supermarket for 13 minutes.

She was sacked three days later, after failing to mention the supermarket trip when quizzed by managers about her movements that day.

A spokesperson for Toll told SmartCompany the surveillance conducted and use of results was in accordance with the company’s legal obligations.

“Employers are permitted to carry out reasonable enquiries to ensure an employee is entitled to an employment benefit being claimed, such as a personal injury claim,” the spokesperson said.

“Like other self-insurers with this responsibility, Toll investigates claims of personal injury at work to ensure any payments being made are able to be justified.

“Those enquiries may include surveillance of an employee.”

Kamal Farouque, a principal at law firm Maurice Blackburn, told SmartCompany it was “unusual” for an employer to directly film its employees outside work.

Farouque says there is legislation in each state which regulates the use of surveillance devices and NSW has specific workplace surveillance legislation.

“Those acts affect the ability of an employer to tape private conversations and the like but engaging in surveillance in a public place is not strictly unlawful,” he says.

“But it doesn’t say much for the practices of the employer because it is likely to impact on the views other employees take of the employer. It will have a bad impact on workplace morale.”

Farouque says a “fair amount of people” would find Toll’s behaviour “coercive and intrusive”.

“There’s nothing strictly unlawful about going to the supermarket, people on sick leave have to eat, drink and get their medicine,” he says.

“What the employer has done may not be strictly unlawful but it breaks an unspoken understanding of where reasonable and unreasonable intrusion lies.”