If the employee doesn't know he or she is being recorded, the employer probably can't use the recording against the employee. 

The Federal Court has prevented an employer from using a video recording of an employee making "adverse and colourful comments" about his employer to take disciplinary action against him or terminate his employment (Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248).

A workplace conversation is recorded

Mr Chappell, has been an employee of Griffin Coal Mining Company Pty Ltd for 28 years and is a site-based union representative. He was called in to the Griffin Coal site near Collie in Western Australia to discuss a traffic management plan for a scheduled protest with local Shire representatives.

After this meeting concluded, Mr Chappell continued to have a conversation outside the site with the Ranger, while two security guards were standing nearby. During this conversation, Mr Chappell raised a number of his frustrations about his employer.

The security guards had been engaged to provide security services at the site gate for Griffin Coal. Both wore high visibility jackets with lapel cameras affixed to their jackets. When the Ranger approached the site gate, one of the security guards, not knowing who the Ranger was, turned on his camera and walked towards the Ranger to record what was going on.

The security guard estimated that he was less than two metres from Mr Chappell while recording the conversation. Justice McKerracher accepted that given how close the security guard was standing, Mr Chappell must have been aware that the security guard could clearly hear the conversation.

Subsequently, Mr Chappell was directed to attend an inquiry into allegations of misconduct, including allegations that his comments about Griffin Coal and its owners were "disparaging and offensive", "racially abusive", and used "violent and profane language". Griffin Coal argued that the conduct was a breach of its Code of Ethics and Conduct and Disciplinary Conduct Action Policy, as well as the Mines Safety and Inspection Act 1994 (WA) and the Racial Discrimination Act 1975 (Cth).

Mr Chappell argued that the conversation was private and he was unaware he was being recorded. He sought to restrain Griffin Coal from using the video in disciplinary proceedings against him, arguing that it was a breach of the Surveillance Devices Act 1998 (WA).

When can you record another person?

In Western Australia, it is an offence under the Surveillance Devices Act to use a listening device (including a mobile phone) to record or listen to a private conversation, unless the person has the consent of the parties, or the consent of a principal party for the protection of their lawful interests. It is also an offence to use an optical surveillance device to record a private activity.

It is also an offence to publish or communicate a recording of a private conversation or private activity.

If a conversation occurs in circumstances that reasonably indicate that one or more of the parties involved in the conversation desires that the conversation be private, then the conversation is considered private.

However, a conversation is not private if the parties should reasonably expect that the conversation may be overheard or observed.

The employer can't use the video

The Court held that, if the conversation was between the Ranger and Mr Chappell then there was no doubt that it was a conversation reasonably expected to be observed and overheard. However, it was arguable that the security guards were part of the conversation, given that Mr Chappell was talking loudly near them and appeared to face them at points during the conversation. At an interlocutory stage, the Court was not required to provide a concluded view on this issue. Instead, it determined that the recording should be unavailable for use until further order of the Court.

Accordingly, Justice McKerracher granted an order in Mr Chappell's favour which prevented Griffin Coal from terminating Mr Chappell's employment or taking disciplinary action against him in reliance on the video, or conducting any further inquiry based on the video.

However, Justice McKerracher noted that this would not prevent Griffin Coal from relying upon any statement made by the security guard in considering Mr Chappell's conduct or disciplining him.

Key point for employers: your video evidence must be lawfully obtained

Secretly taped conversations (either by the employer or employee) are becoming a more common issue in workplace management and disciplinary processes. While the decision is interlocutory, it is an important reminder to employers to be familiar with the operation of the Surveillance Devices Act to ensure that evidence which they want to use in any disciplinary process was lawfully obtained.

An employer is unlikely to be able to use footage or audio recordings of its employees engaging in alleged misconduct, where the conduct occurred in the context of a private conversation or activity and the employee was unaware of the recording.