Nick Papadopoulos loves to take off his clothes and show his muscles in front of kids. He even likes to get young teenage Aboriginal girls and boys to feel his naked body while working out with no top on.
But look in the comments section even his friends and family are tired of him showing off his bare body all the time:
Maybe his inflated ego told him it was okay to secertly record people and kids at work without consent? Maybe it was his relationship with the other leadership of the school? Maybe it was his friendship with Education Director Paul Newman and Assistant Mark Ames who told him it was okay?
“There could hardly be an act which strikes at the heart of the employment relationship more, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with their work colleagues and the kids they’re around all day.“
Nicholas Papadopoulos, as the school counsellor/leadership position at APY Lands Aboriginal school ‘Ernabella’ in 2015, has admitted to secretly recording his work colleagues without their knowledge or consent. This was during Ferg Ferguson’s public Employment Tribunal hearing.
Parts of those recordings also include kids in the classroom and school grounds and confidential information about kids and families discussed during staff meetings.
He did all this on his personal mobile phone, in breach of Department for Education policies and guidelines and in breach of the Public Sector Code of Conduct and Ethics and the SA Public Sector Act.
He removed those recordings and took them off site, in breach of all of those policies and guidelines again.
He kept those recordings for 2 years. Then he said he destroyed those recordings, according to a government lawyer in Ferg Ferguson’s Tribunal hearing, after Mr Ferguson had asked for copies of them as evidence.
COPIES WERE MADE AND SHARED WITH HIS FRIENDS AND FAMILY.
He also breached the Surveillance Devices Act by making and sharing these recordings.
This is serious misconduct and illegal.
Parental consent was not given and employee consent was not given.
Legal cases involving secret recordings are becoming increasingly common in Employment court cases and in the Fair Work Commission. Several decisions handed down in recent years illustrate this trend.
In Thompson v John Holland Group Pty Ltd the employee had been dismissed for secretly recording a meeting he had with two of his managers. He revealed the recording to a colleague who then informed a manager. An investigation into the employee’s conduct followed which resulted in the employee’s dismissal for making the recording. The employee lodged an unfair dismissal claim with the Fair Work Commission.
In determining the claim, the Commission had to decide two issues:
- Was the secret recording of the meeting admissible as evidence in the employee’s unfair dismissal application?
- Was the employee’s dismissal unfair?
Ultimately, the answer to both questions was ‘no’.
The Commission’s answer to the first question was closely linked to the applicable surveillance legislation, which in this case was the Surveillance Devices Act 1998 (WA). The Commissioner held that it was likely that the secret recording was made in breach of that legislation.
On the second question, the Commission held that the employee’s decision to secretly record the meeting with his managers and then replay that recording to a colleague provided a valid reason for the employer to terminate his employment. The Commission described the secret recording of the meeting as “wrong and inexcusable” and considered that the employee’s conduct had destroyed the essential relationship of trust and confidence, emphasised by the fact that the colleague to whom the employee revealed the secret recording gave evidence that he no longer felt comfortable working with the employee.
The Thompson decision was reinforced in Thomas v Newland Food Company Pty Ltd. In Thomas, the employee was working at a Queensland meat processing plant. He had made three WorkCover claims in respect of various injuries suffered over the course of the five years he worked at the plant.
The employee began to secretly record meetings he had with his managers as they attempted to organise appropriate duties for him given his injuries. The employee was eventually dismissed after it was discovered that he had taken photos of alleged breaches of food safety standards at the plant with a view to using them against the employer unless he received a redundancy package.
The employee lodged an unfair dismissal claim. The Commission found:
- that there was no evidence that the employee intended to blackmail the employer with the photos of food safety breaches; and
- that the employee was not accorded procedural fairness in the manner of his dismissal.
It followed that the employee had been unfairly dismissed and in the ordinary course would be entitled to reinstatement. However, the Commission held that reinstatement would not be appropriate given that “there could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with management“.
A third decision of the Commission which considered the dismissal of an employee for recording workplace meetings is Schwenke v Silcar Pty Ltd. The performance of a trades assistant became an issue not long after his initial engagement, culminating in a meeting attended by the employee and his managers in which he received a first and final warning to improve his performance.
A further meeting occurred two weeks later in which the employee suggested that he had made a voice recording of the first meeting. After that revelation, the employer summarily dismissed the employee. The employee subsequently brought an unfair dismissal claim against the employer.
The Commission characterised the reasons for the dismissal as being twofold:
- serious misconduct, being the secret recording of the first disciplinary meeting with management; and
- performance related issues.
Unlike the two cases considered above, the Commissioner in this case did not consider the relevant surveillance legislation to determine the lawfulness of the employee’s secret recording. This was largely because the employee did not seek to introduce the recording as evidence during the hearing.
The Commission reiterated the message from the Thompson and Thomas cases: secret recordings are contrary to an employee’s duty of good faith and undermine the mutual trust and confidence that is essential to the employment relationship. The Commissioner here commented that unlike notes taken with a pen and paper during meetings, “secretly recorded discussions are objectionable because one party is being deceptive and purposefully misleading the other party“.
The Commission concluded that the employee’s dismissal was not unfair. Both the employee’s misconduct in recording the first disciplinary meeting without the knowledge or consent of his managers, and the various performance related issues identified by the employer, provided valid reasons for the employer’s decision to terminate the relationship. That finding was upheld on appeal.
“wrong and inexcusable” and considered that the employee’s conduct had destroyed the essential relationship of trust and confidence.
“serious misconduct, being the secret recording of the first disciplinary meeting with management”
“secretly recorded discussions are objectionable because one party is being deceptive and purposefully misleading the other party”
“the recordings were planned, as well as being without the explicit consent of most others participating in the conversations.”
9. The secret recording of co-workers is conduct that the Fair Work Commission has found to be, sneaky, abhorrent, a fundamental breach of the relationship of trust and confidence between employer and employee, and a valid reason for the termination of employment.”
In a situation in which an employee unilaterally determines they will record other co-workers without informing them that such is the case or seeking their consent undermines to a grave degree the viability of a continued employment relationship. It is entirely foreseeable that the target of a recording, once they find out they have been recorded against their will, may no longer want to work with the person who made the recording. The fact that consent had not been sought or that the other party did not have an opportunity to avoid the interaction must surely be exactly what Mr Trier contended in his allegations to Mr McAuley that an employee’s recording of others was sneaky and abhorrent.
 Applying ordinary Australian community standards I do not accept that any employee or any employer would be content to have any meeting they were attending secretly tape recorded. The ordinary conduct of personal, business and working relationships in our community is predicated on the basis that if there is to be any record of a meeting it will be agreed in advance. Anything else is quite properly described as sneaky.
Its very sneakiness makes it abhorrent to ordinary persons dealing with each other in a proper fashion.
Nicholas Papadopoulos is now working as Deputy Principal of Hendon Primary School:
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