Following a recent and shocking story from an injured worker on our forum, we decided that it may be important to highlight that the private investigators are bound by a code of conduct and are not allowed to trespass private property.The WorkCover Authority (VIC and all states) considers that surveillance of a claimant is a legitimate tool for management of a claim, however, the WorkCover Authority does issue of code of conduct to its investigators under which they are expected to operate. Click here for PDF document Code of Practice for Private Investigators
Workcover surveillance: a real story
“What the go with these mongrel pricks roaming around on your own god damned private property?
Had one today, on one of the rare occasions I actually decided to go for a walk and forget this crap for 10 minutes. Some stupid arsed bird, trying to dress like she was country (brand new jeans and shiny black shoes more like something out of Beverly Hillbillies) claiming to be a dog lover (but had no dog but did have a plastic water bottle…as bloody if) who tromps the countryside often, but who avoided stepping on dirt and instead skipped to the sodden grass and sank into water, who didnt want her city shoes getting dusty, and who brought up a number of things I have wrong making leading statements.
Scuse my swearing. Whats the ruling on these f*cked up snoops on PRIVATE PROPERTY filming, taping …?
Pissed? You f*cking bet I am.”
Will workcover try to film me
Surveillance of claimants under WorkCover does occur from time to time. The incidence of surveillance is much less than the public perception of its frequency. Nonetheless it is not uncommon for it to occur and, in fact, last year it was reported that WorkSafe (Vic) spent 15 million dollars on secret surveillance!
The cases where it is most likely to occur are the following types of claims where:
- The injury is not readily demonstrable,
- Employers are strongly resistant or hostile to a claim,
- A claimant has been in receipt of weekly payments for an extended period
- Disaffected persons, e.g. former partners, neighbours or relatives etc have made a report to WorkCover about activity.
Occasionally, information from surveillance can cause considerable damage to a WorkCover claim but this is most commonly limited to those cases where there is clear dishonesty. For example, film of a claimant working smashing a concrete block with a sledgehammer, could destroy the claim for compensation for a back injury. These cases of dishonesty are rare. Most of the difficulties that result from surveillance do not come from the film or information itself but from its effect on a claimant’s general credibility. It is common, in the course of the case, for a WorkCover medical examiner to ask a claimant about whether they can undertake various activities. Similarly in some court cases a claimant can be asked whether they are able to undertake activity such as washing the car. If a claimant denies an ability to undertake this activity, but is subsequently shown on film or other evidence, to be doing this activity then this will affect the claimant’s credibility generally.
Using our example above, if a claimant was asked whether or not they wash their car, or mow their lawn etc and answer that they do so but have some increased pain afterwards, it will usually not negatively affect the case in any way. In this circumstance, the film of the particular activity will not cause any difficulty. Where there is a clear denial of undertaking that activity, a film will have an effect, not because of the activities shown but rather because of the claimant’s denial of undertaking the activity. The claimant’s credibility will be negatively affected.
What should I do if workcover is filming me
- Live your life within the terms of your disability and undertake whatever activities you think appropriate to your disability. If you are thinking about undertaking a major activity in the future, tell your doctor about it and ask their advice about its suitability. Your enquiry will be recorded in the doctor’s notes and can be relied upon by you if necessary.
- Do not overreact to the prospect of surveillance. It is sometimes possible to misinterpret innocent or normal activities as surveillance. In rare circumstances someone watching your movements may be unconnected with your WorkCover claim and maybe linked to some worrying activity, for example planning a break-in to steal from your home. If you are concerned about this prospect you should ring the police and notify them of your concerns. Taking a record of vehicle numbers will be of some help. If the activity is in fact related to your claim the police will not advise you of this specifically, but may indicate that you should not be concerned about some possible criminal activity.
- If you commence any paid employment make sure you notify the relevant WorkCover Authority or your lawyer.
- When asked about what activities you can and cannot undertake, be particularly careful to specify the activities that you can do. You can go on to explain how each activity affects your level of pain etc.
Workcover private investigators must adhere to Act and Code of Conduct
Our new co-author, @trinny, also kindly forwarded us this interesting article about private investigators in Australia. An investigation is a fact finding process. It requires an Investigator/reviewer to search for, gather and examine information to establish the facts of the allegation, issue or complaint.
The circumstances that surround each alleged incident or complaint make all investigations unique, however, despite variables such as location, the people involved and complexity of each case, all investigations do have similarities. This means that the basic framework for conducting any investigation should be the same.
There are two types of investigations, administrative and criminal. The two are different in that an administrative investigation can be conducted by a delegated authority and is usually employment based i.e.: an employer seeking explanation from an employee.
A criminal investigation is conducted by a member of a law enforcement agency and considers breaches of the Criminal code and associated legislation and laws.
Administrative is based on the balance of probabilities
An example of the ‘balance of probabilities’ is the ‘Boy Who Cried Wolf’. The town’s folk had heard the boy cry ‘Wolf’ so many times without the wolf appearing, the balance of probabilities were if the boy cried ‘Wolf’ again, there would be no wolf.
Criminal is based on the burden of proof.
Using the same scenario, the town’s folk would have required ‘proof’ beyond reasonable doubt that the wolf was present. They would not have come to the boy’s assistance on his cry alone. E.g.: a photograph taken with the wolf, with the boy holding a current newspaper showing the date, plus a DNA report on wolf hair.
In criminal cases, allegations against a Respondent must be proved beyond reasonable doubt.
When dealing administrative investigations the civil standard of proof applies – which is lower than that required in criminal matters
The test becomes a question as to whether or not, ‘on balance’, a reasonable person would conclude that based on the evidence presented the Respondent did commit a breach.
‘The more serious the consequences of an adverse finding, the more onerous must be the standard of proof.’ Briginshaw Standard.
Within Australian in order to conduct Administrative Investigations, an investigator needs to hold an Investigator’s license as provided by the Police and Licensing Services of that State. This license is provided in accordance with the Security and other Related Activities Act.
If an investigator wishes to work for themselves they must also hold an Inquiry Agent’s License. This license is obtained after providing assorted documentation to the Licensing Centre including a business plan, financial statements and successfully sitting an examination.
An investigator working for an Agent also has obligations under the Act with regards to documentation, breaches and notifications. Ignorance is not an excuse, so review and study of this legislation is a necessity.
Administrative Investigations usually revolve around the alleged breach of a policy, process or procedure. To substantiate any allegation, an instrument needs to have been breached or violated. For example, if an allegation states that an employee has acted inappropriately, the breached instrument needs to be identified, such as the Code of Conduct. I.e.: It is alleged that the staff member has acted inappropriately in disrespecting a superior which is a breach as laid out in the code of conduct.
One of the main elements of any investigation is the adherence to Procedural Fairness. This term is used often but few people understand its application and true meaning.
What is procedural fairness?
Procedural fairness is the procedures used by the investigator rather than the actual outcome reached.
Also known as Natural Justice, the principles have been developed to ensure decision-making is fair and reasonable.
Natural justice is designed to ensure that people are informed about the case against them or their interests and given the right to respond, as soon as practicable.
In Australia, an investigator must be licensed, adhere to the Act and Code of Conduct and ensure they follow procedural fairness when conducting investigations.
Private investigators and complaints
In Victoria, the licensing of private investigators is handled by Victoria Police under the Private Security Act 2004. More information from the Victoria Police site , including contact info for the licensing service.
Complaints can be lodged with the service.
There’s also a Private Investigators Code of Practice for investigators undertaking work for Worksafe Victoria
The governing legislation is the Commercial Agents and Private Inquiry Agents Act 2004.
The licensing is administered by the NSW Police Commercial Agents and Private Inquiry Agents Unit. Complaints can be directed to this Unit.
Private investigators (and security providers) operating in Queensland must be registered under the Security Providers Act.
You can lodge your complaint with the Office Fair Trading which administers this act. Contact information for the Office of Fair Trading.
In South Australia, private investigators are licensed by the Office of Consumer & Business Affairs (OCBA) under the Security and Investigation Agents Act.
Here’s some more information from the OCBA site.
Contact information for the Office of Consumer & Business Affairs
Private investigators in Western Australia are licensed under the Security and Related Activities (Control) Act.
This act is administered by the WA Police.
More information from the WA Police website, including contact information for Police Licensing Services.
In Tasmania, private investigators are licensed under the Security and Investigation Agents Act 2002:
The act is administered by the Commissioner for Corporate Affairs.
Complaints can be lodged with Consumer Affairs and Fair Trading
In the Northern Territory, private investigators are licensed under the Commercial and Private Agents Licensing Act 1979.
The act is administered by the Office of Consumer Affairs.
Contact information for Consumer Affairs NT.
It appears that ACT does not require private investigators to be licensed!
More information: http://www.alrc.gov.au/
Further links:ALRC-Private investigators
[Note: there are heaps of surveillance articles on our blog, including dirty tactics used by private investigators. To find them, simply conduct a search using the keyword " private investigator" and/or "surveillance"]We believe that any injured worker who is being inappropriately commercially stalked (really) ought to make a formal complaint