‘Smart devices’ (phones, tablets and the like) populate almost every workplace and have increasing capacity to be used to record conversations. So what happens if an employee secretly records private workplace meetings and conversations using a smart device? Can they do it and, if they do, can those recordings be used in a subsequent workplace dispute?
These questions are more frequently arising for employers as the practice of making recordings occurs more often in workplaces, with varying outcomes.
In this briefing, we look at the general rules that apply to the recording of private conversations in the workplace and recent decisions of the Fair Work Commission which have examined the issue of secret recording.
A kaleidoscope of rules and regulations
Each Australian state and territory has its own set of rules and regulations that apply to covert recordings of private discussions. Most of these laws apply generally and are not specific to the employer-employee relationship (although there are exceptions, such as the Workplace Surveillance Act 2005 (NSW)). Nevertheless, the general rules apply to the workplace setting.
As an example, the Victorian legislation (the Surveillance Devices Act 1999 (Vic) (SD Act)), prohibits a person from using any device (including a smartphone) to record a private conversation to which the person is not a party, unless the person has the consent (express or implied) of each of the parties to the conversation to record it.1 The maximum penalty for recording a private conversation without consent is two years’ jail and a hefty fine.
Additionally, even if a private recording is lawfully made, the SD Act prohibits the communication or publication of that recording without the consent of each of the participants to the conversation (with limited exceptions).
The other Australian states and territories have legislative schemes broadly similar to that in Victoria. Although in some jurisdictions (for example, Western Australia)2 , it is unlawful to record a conversation, even if a person is party to it, without the consent of all participants.
When considering the issue of secret recordings, it is important to identify which state or territory legislation applies to any given case.
Lessons from the cases to date
Cases involving secret recordings are becoming increasingly common in the Commission. Several decisions handed down in recent years illustrate this trend.
In Thompson v John Holland Group Pty Ltd (Thompson)3, 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 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. Even though the illegality of the recording did not automatically preclude it from being admitted as evidence (because the Commission not being bound by the ordinary rules of evidence), the Commission was not convinced that the recording should be allowed into the hearing.
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 (Thomas case).4 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.5 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".6
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.7
Where to from here?
While the Commission has taken a dim view of employee conduct in making secret recordings, unfair dismissal cases always turn on their own facts. Now that the High Court has decided that there is no implied term of ‘mutual trust and confidence’ in employment contracts in Australia8, it will be interesting to see whether the Commission continues to reach the same conclusion on the basis of an implied term of good faith alone.
Tips for employers
Here are some tips for managing the issue in the workplace:
- Employees should be asked to switch off their mobile phones and similar devices at the start of confidential workplace meetings, including disciplinary and grievance meetings. Employees should be asked to switch off their mobile phones and similar devices at the start of confidential workplace meetings, including disciplinary and grievance meetings.
- Employment policies should be reviewed and updated to deal with the conduct of employees making covert recordings. Policies should expressly prohibit the making of recordings in the workplace without consent of the parties to the conversation.
- Managers should be alert to the fact that their conversations may be recorded by colleagues and as such, when managing disciplinary issues, follow good practices and act in accordance with relevant policies and procedures.
- If employers become aware of secret recordings in their workplace, the issue should be addressed promptly and proportionately to the conduct having regard to all the circumstances of the case.
- Take advice before dismissing an employee for making a secret recording to ensure that all relevant legal issues are considered, including the applicable surveillance legislation.