Mine truck driver sacked after sending in his own secret recording

What happened

Martin Stoddard drove haulage trucks between two mine sites, Parker Range and Carina, in Western Australia's Yilgarn region, working four-week swings. He started on site through a labour hire company in October 2023 and became an employee of Crushing Services International when the business transferred in March 2024. He had no other performance or conduct issues.

On 11 May 2024 he hurt his back driving a truck with a faulty seat. Two days later, back on normal duties, he photographed the damaged cab of that truck on his phone so he could show a supervisor at Carina. Walking to the office, he started recording on his Apple Watch because, he said, he did not trust the supervisors there.

The watch kept recording while he helped a fitter with a tyre re-torque on his truck (re-tightening the wheel nuts to the right setting), and while he showed the supervisor the photos. The supervisor never said having his phone was a problem. Mr Stoddard stopped recording as he started the truck to leave. He told no one.

The recording comes back to bite

In August 2024, after an injury management adviser texted him and noted that he had engaged legal assistance, Mr Stoddard emailed her the recording, copying in HR and the haulage manager. “I recorded it for my own protection,” he wrote.

The company built its allegations from the recording. On 30 August 2024 he was stood down on full pay, accused of having and using his mobile phone in operational areas, having it on him while operating a vehicle, and doing a re-torque that only a qualified heavy-duty fitter was allowed to do. After a short meeting and a show cause letter, he was dismissed by letter on 10 September 2024. As he was on a workers' compensation claim, his end date was later moved to 11 October 2024. HR later said his failure to show remorse contributed to the decision.

He applied for an unfair dismissal remedy after the 21-day deadline, but an earlier decision let the claim go ahead because exceptional circumstances were present.

The legal test: was there a valid reason?

Under s 394 of the Fair Work Act 2009 (Cth) a dismissed employee can ask the Commission for a remedy if their dismissal was harsh, unjust or unreasonable. Section 387 lists what the Commission must take into account. The first is whether there was a valid reason for the dismissal related to the worker's conduct or capacity, assessed objectively on all the circumstances. Others include whether the worker was told the reason and given a chance to respond.

Here the procedure was not the problem: Mr Stoddard was told the allegations, given a chance to respond and allowed a support person. The case turned on whether the reasons stood up.

What the Commission decided

The re-torque allegation failed. It was common ground the job was done with a qualified fitter. Mr Stoddard said he held the ratchet end of the bar, the company did not call the fitter, and the company had not shown he was ever told how drivers and fitters were to split the task. The HR adviser's evidence was second-hand and partly inaccurate.

The phone allegation failed too. The written rules banned phones, but the Commission found that in practice drivers were allowed to carry them, turned off in a bag, for safety on long drives, and supervisors authorised their use. Mr Stoddard did not use his phone while operating equipment. He used it briefly in the office to show photos, and the Commission accepted his motive was a genuine safety concern. That his supervisor raised no concern suggested the dismissal was an overreaction.

The company also relied on a July 2024 notice about mobile phones and smart watches. It was issued two months after the recording, so it could not support the company's case. No policy in the evidence mentioned smart watches as at 13 May 2024.

Finally, the company argued the secret recording itself, made in WA where the Surveillance Devices Act 1998 (WA) applies, appeared to break that law and went to trust and confidence. The Commission did not decide that point. Commissioner Simpson agreed it was “a form of misconduct”, but in the particular circumstances not misconduct serious enough to warrant dismissal. With no valid reason, the dismissal was harsh, unjust and unreasonable.

How much was awarded

Mr Stoddard did not press for his job back, and the sites he had worked at were closed. The Commission found reinstatement inappropriate, agreeing that secretly recording colleagues was relevant to trust and confidence.

For compensation, it estimated he would have stayed employed for no more than another 16 weeks: $51,204.16 at $3,200.26 a week. It deducted the four weeks' notice he had been paid ($12,801.04), leaving $38,403.12, then cut that by a further 20% for the secret recording. The order was $30,722.50 plus 11.5% superannuation.

What this means for you

If you are tempted to secretly record a manager, think hard first. Although this worker won, his recording was treated as misconduct, supplied the evidence against him, counted against reinstatement and cost him a fifth of his compensation. In WA, surveillance laws may also apply, so it is worth getting advice before you record anyone.

If you face allegations based on a policy, ask for the policy that applied on the day and point to how the rules actually worked on site.

Time limits are short: an unfair dismissal claim must normally be lodged within 21 days of the dismissal taking effect.