Off the record: The problem with secret recordings

Angus Macinnis

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written on June 23, 2015

The secret recording has long been the staple of cop shows and gangster movies. The tension builds as the informant is wired up, and we sit there wondering: Will the wire be discovered? Will the criminals spill the beans about their dastardly plans? And most importantly, will it all happen before I’ve finished this popcorn?

Secret recordings raise different questions in a workplace context, and these questions are popping up more frequently. The prevalence of smartphones means that a lot of people now carry a device capable of making secret recordings in their pocket as a matter of course. The enthusiasm for making secret recordings may even go right to the top – it has been widely reported that a judge from the Supreme Court of Queensland used a smartphone to secretly record a conversation with the court’s Chief Justice.

So, if court judges are (reportedly) doing it, it must be okay to record meetings with your boss, co-workers and with HR, right? Well, not really. Members of the Fair Work Commission have now considered these sorts of secret recordings on a number of occasions, and it is fair to say that secret recordings don’t impress the commission all that much. Some samples from the cases include descriptions such as “sneaky”, “abhorrent to ordinary persons dealing with each other in a proper fashion” and “it is patently clear the respondent was less than thrilled by having its conversations secretly recorded. I don’t blame it.”

Of course, making a secret recording at work may also be illegal. Different Australian states have different laws in relation to when it is, and when it is not, illegal to secretly record a conversation. However, just because it is not a crime to make the recording doesn’t mean it’s a good idea. There are lots of things that can damage the relationship of trust and confidence even though they are not illegal. Making secret recordings is pretty much the polar opposite of establishing trust.

So, how should you respond to secret recordings? You could use the gangster movie approach and only meet with your employees in a swimming pool or in a sauna. All of these techniques have been used in the movies to make it difficult or impossible to conceal a recording device. However, there may be occasional practical problems, and it might be hard to claim sauna membership fees on expense reports.

There are better ways of handling secret recordings. Your disciplinary and grievance procedures should already stress the importance of confidentiality in resolving workplace concerns, and it is worthwhile setting out in express terms that making secret recordings undermines the confidentiality ­– and the integrity – of these processes.

There are excellent reasons to have a record of what is said in disciplinary meetings, which is why we take notes. Taking notes during a meeting is very different from making a secret recording, because writing notes is done in the open and all parties are in the same position. Similarly, if a recording is made in the open then both parties are in the same position, and many employers take the view that the best way to prevent employees making secret recordings is for the employer to record the meeting and keep it as a point of reference in the case of a dispute.

Sometimes it may be appropriate to provide the employee with a transcript, although in a lot of cases this would be overkill. The employer should keep the original recording to itself, lest the digital file be released to the internet and become the latest viral sensation.

Secret recordings raise a common issue with workplace technologies, namely that the rise of new technologies is usually closely followed by a host of new ways for employees to get themselves into trouble. How much trouble? Well, I could tell you some stories, but alas, I’m all out of popcorn.

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