An employer obtained a VCD containing images of his employee who neglected his duty during working hours, and the employer later used the VCD as evidence to dismiss the employee. There was no evidence in the case showing that the employer was the person who collected the images. Even if there was evidence, in the circumstances of the case, when the employer took the images for the purpose of collecting data about his employee's dereliction of duty, he was not bound to follow the requirement of DPP1(3).
An employee slept at his workplace during working hours - the images were videotaped by unknown person - employer obtained the VCD and dismissed the employee - whether the employer had contravened the Personal Data (Privacy) Ordinance ("the Ordinance") - section 39(2)(d), DPP1(2) and DPP1(3) of the Ordinance
The Complaint
The complainant was informed by his employer that his employer had a VCD showing the complainant slept in the storeroom of the workplace while he was on duty. The complainant was subsequently dismissed. The complainant said that there was no video recording equipment in the storeroom, so he suspected that his employer took the video sneakily without his consent. The complainant thought that his employer had intruded his privacy and lodged a complaint with the Privacy Commissioner.
Findings by Privacy Commissioner
The complainant had not watched the video and did not know who took the video or under what circumstances the video was taken. However, he clearly stated that there was no video recording equipment or surveillance camera in the storeroom. Therefore, there was no prima facie evidence showing that the employer had contravened the requirements of the Ordinance. Moreover, even if the employer was the person who took the video and he did it without the prior consent of the complainant, the purpose of taking the video was to gather evidence on the complainant's dereliction of duty during working hours. As the videotaped images were images of the complainant sleeping during working hours, it was not reasonably practicable to require the employer to inform the complainant beforehand. Therefore, the employer was not necessary to follow the steps specified in DPP1(3). The Privacy Commissioner decided to refuse to carry out an investigation pursuant to section 39(2)(d) of the Ordinance. Being dissatisfied with the Privacy Commissioner;s decision, the complainant lodged an appeal with the AAB.
The Appeal
During the hearing of the appeal, the employer confirmed that he received the VCD together with an anonymous letter. The employer neither knew the identity of the anonymous complainant nor realized the person who made the VCD. After the AAB and relevant parties had watched the VCD, they all agreed that the images in the VCD were taken by using a mobile phone or video recorder. The employer insisted that he had not authorized any staff to take the video. The complainant had no evidence to doubt about this. Thus, the complaint about the taking of the video sneakily by the employer could not be established.
Furthermore, the complainant queried that the decision of the Privacy Commissioner did not satisfy with the requirements of DPP1(1) and DPP1(3). According to the AAB, unless the video maker had contravened DPP1(3), the recording itself was neither unlawful nor unfair. Regarding DPP1(3), the AAB considered that even if the video maker was the employer or a person authorized by the employer, as the purpose of taking the video was to gather evidence on the complainant's dereliction of duty during working hours, it was not "reasonably practicable" for the employer to wake up and inform the complainant of the purpose of video recording.
The AAB found that it was not unlawful or unreasonable for the Privacy Commissioner to exercise his discretion of refusing to carry out an investigation pursuant to section 39(2)(d) of the Ordinance.
The AAB Decision
The appeal was dismissed.
uploaded on web in February 2010