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The investigation in this case established that, at the time of the relevant incident on 19 February 2014, the roll-out of CCTV signage by Aircoach had commenced; however, the company failed to properly or fully inform staff that CCTV footage might be used in disciplinary proceedings. Any monitoring of employee behaviour through the use of CCTV cameras should take place in exceptional cases rather than as a norm and must be a proportionate response by an employer to the risk faced, taking into account the legitimate privacy and other interests of workers. In this case, when processing the complainant’s image, Aircoach was not aware of any particular risk presented and, by its own admission, was investigating an unrelated matter. While it subsequently transpired that the incident in question was indeed a very serious matter, involving alleged use by a driver of a mobile phone while driving, there was no indication at the time of the actual processing that this was the case and the processing therefore lacked justification. In addition, the fair-processing requirements set out in Section 2D were not fully met and fair notice of the processing for the specific purpose of disciplinary proceedings was not given to drivers whose images might be captured and used against them. In those circumstances, the processing could not be said to have been done in compliance with the Acts and the Commissioner found that Section 2(1)(a) had been contravened.
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