HRM asked a legal expert what employees can and can’t do with secret recording during workplace disputes.
Secret recordings are becoming increasingly common in the workplace as smartphones allow employees to easily record interactions. Many employees view these secret recordings as an easy way to safeguard their rights in the workplace, unaware of the complexities involved.
It’s important for HR professionals to be aware of what employees can and can’t do when it comes to secret recordings in the workplace, including how responses to such materials are treated differently by the Fair Work Commission and other jurisdictions.
Recording telephone conversations
So if you find out that an employee has recorded a sensitive workplace phone call – say, a heated performance management conversation between themselves and their manager – without letting that manager know, can you reprimand them for it?
Recording telephone conversations is governed across Australia by the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA) which operates in conjunction with state-based legislation.
The TIA contains a broad, but technical, prohibition of any recording of telephone conversations without the knowledge of the person making the communication.
This prohibition is limited by what specific apparatus is used to record the conversation. Case law suggests that if the effect of the recording application on a smartphone is to record incoming and outgoing conversations as they are occurring (i.e. intercepting a call with an external bug or wire), it will be unlawful. However, if the application records the conversation after it has been received by the device, such as a recording device sitting next to a call on loudspeaker, this recording may not be unlawful under the TIA.
It is highly unlikely that an unlawful recording would be accepted by the Fair Work Commission as admissible evidence.
“By secretly recording a meeting and presenting this evidence to the FWC, employees often create a valid reason for their dismissal which may not have existed earlier.”
Secret recording of in-person meetings
Recording of non-telephone conversations, such as in-person disciplinary meetings, are also governed by state-based legislation which differs depending on the state that the employment is performed.
In Victoria, for example, employees are covered by the Surveillance Devices Act 1999 (Vic) which permits the use of a recording device to record “private conversations” to which they are a party. The consent of the other parties to the conversations is not required. However, it is the subsequent use of that recording which is subject to prohibitions and limitations. In general, knowingly publishing or communicating a secretly recorded conversation is prohibited.
This does not apply where an employee secretly records a conversation to which the employee is party, and is reasonably necessary for the protection of their lawful interests, for instance.
Therefore, it is lawful in Victoria for an employee to both secretly record a non-telephone conversation to which they are a party to, and to communicate this recording, if this is reasonably necessary for their own legal protection. Both Queensland and the Northern Territory also have similar provisions in their applicable acts.
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When it can backfire on employees
Despite the fact that secretly recording disciplinary meetings is often lawful in Victoria, Queensland and the Northern Territory, in practice these recordings often do more harm than good for employees in unfair dismissal proceedings before the Fair Work Commission (FWC).
It’s not uncommon for employees to seek to adduce secret recordings as evidence in an attempt to win relatively minor contests over what exactly took place during a disciplinary meeting. While a secret recording may assist an employee in establishing minor procedural concerns regarding the precise words used, or the sequence of events, it can come at a cost.
The FWC has consistently viewed, at first instance and on appeal, that the making of these secret recordings constitutes misconduct and a valid reason for dismissal irrespective of whether an employer has policies on the issue or not.
For example, last year in Angele Chandler v Bed Bath N’ Table, Commissioner Lee found that:
“Taking into account all of the circumstances, I am satisfied that the covert recording of the conversations [between the employer and employee] is a valid reason for dismissal. It was not the reason relied on for the dismissal and could not have been as the employer was unaware at the time the recording had taken place until the filing of materials in this matter.
Whilst the Applicant did not intend to harm the employer by making the recording, she could have achieved the same objective by advising that she was making the recording. I am not satisfied that the Applicant was genuinely fearful of [the employer]. Covert recording of the conversations was inappropriate and damaging of a relationship of trust and confidence with the employer. This is a factor weighing against a finding that the dismissal was unfair.”
For employees, making secret or covert recordings or attempting to adduce them as evidence in an unfair dismissal proceeding is often counterproductive.
By secretly recording a meeting and presenting this evidence to the FWC, employees often create a valid reason for their dismissal which may not have existed earlier. An employer could then rely on this to defend an unfair dismissal claim.
As a result, any advantage an employee may achieve by making a secret recording to establish a sequence of events in the FWC is significantly outweighed by its prejudicial effects.
Further, the FWC has, on occasion, both prevented the applicant from adducing the contents of a secret recording as evidence and then still found the act of making the secret recording to be a valid reason for dismissal.
Secret recordings and other employment claims
Courts, while governed more strictly by the Evidence Act 1955 (Cth), are generally more accepting of secret recordings. For example, in a general protections claims before the Federal Circuit Court of Australia, the main contest to be decided by a court is the question of what the substantive or operative reasons behind the dismissal was.
If a secret recording helps establish that the dismissal was taken for an unlawful reason, a court will not prejudice an employee for making the secret recording in the same way we have seen in the FWC.
In the case of Wintle v RUC Cementation Mining Contractors Pty Ltd, an employee brought a recording device into the workplace to secretly record conversations which he alleged were discriminatory against him on the basis of his race or national extraction. The Court admitted the recordings as evidence because they were considered relevant to his claim under section 351 of the Fair Work Act 2009.
The act of making the secret recordings was found to be lawful under the applicable state legislation and did not prejudice the employee’s claims in any way. Further, even if the recordings were found to be unlawful, Judge Lucev commented that they would have been admitted into evidence anyway (largely due to the fact they were the best available evidence).
In short, whether a secret recording is lawful or not depends on a variety of often complex factors. Further, how secret recordings are treated in employment disputes also varies significantly between different employment proceedings and jurisdictions.
As a result, we are left in the peculiar position where one secret recording which gave rise to an adverse finding of misconduct in the FWC could easily be accepted by a court without sustaining prejudice of any kind.
Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.
Michael Kriewaldt is a lawyer at Jewell Hancock Employment Lawyers.