It is easy to see why an employee who, rightly or wrongly, thinks that they are protecting their interests by secretly recording a conversation with their employer. Such recordings will generally be made in the context of a disciplinary or performance-based meeting, where the employee has a sense of injustice about the process. The employee would even be right in thinking what they are doing is legal. However, regardless of the legality of recording a private conversation, doing so may still constitute a valid reason for dismissal, even if the secret recording was not known to the employer at the time of dismissal.

Legality of covert recordings

In Victoria, it is not unlawful for an employee to use a recording device to record a “private conversation” to which they are a party.

A “private conversation” under the Surveillance Devices Act 1999 (Vic) is a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it don’t want it others to hear it. However, a private conversation does not include a conversation had in circumstances in which the parties to it ought reasonably expect that it may be overheard by someone else.

You are a “party” to that conversation if you are a person by or to whom words are spoken in the course of the conversation

Further, the legislation does not require the employee to obtain the consent of the other parties to the conversation to make a recording. The employee may not, however, “knowingly communicate or publish a record or report of a private conversation” made using a “listening device, an optical surveillance device or a tracking device”, unless the communication or publication is for the protection of a person’s lawful interests or the recording is disclosed in the course of legal proceedings.

Please be aware that surveillance laws vary between the states and territories.

So no laws have been broken – can the employee be validly dismissed?

While an employee may argue that their actions are not unlawful, it does not follow that an employer must accept such conduct. Indeed, surreptitious recordings may be a valid reason for dismissal (even if it was not known to the employer at the time of dismissal that a secret recording has been made).

In the case of Chandler v Bed Bath N' Table [2020] FWC 3706, the employer relied on other reasons for dismissal when dismissing Ms Chandler (including the manner in which Ms Chandler notified her employer of absences, and alleged intimidatory correspondence with her supervisor). However, Commissioner Lee found that Ms Chandler’s secret recordings of private conversations with her employer (which came to light after the dismissal) was a valid reason for dismissal. Commissioner Lee found that making a covert recording of the conversation was inappropriate and damaging to the relationship of trust and confidence with the employer. Ultimately, despite the employer having a valid reason, Commissioner Lee found that the dismissal was unfair due to various procedural deficiencies including the failure to offer a support person at the disciplinary meeting. However, it was accepted that reinstatement was inappropriate due to Ms Chandler’s conduct in covertly recording her employer.

More recently, in Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711, Ms Roman was dismissed from her hospital services attendant position at a hospital for failure to follow her employer’s direction to provide evidence of a Covid-19 vaccination. Deputy President Colman found that the employer had three valid reasons to dismiss Ms Roman. The first valid reason was Ms Roman’s inability to meet the inherent requirements of her role (given she was unable to attend the premises). It was noted that incapacity to work was an obvious valid reason for dismissal. But it was not the only valid reason. The second valid reason was Ms Roman’s failure to follow her employer’s reasonable and lawful direction to provide it with relevant vaccination-related evidence. Lastly, it was also found that the secret recording of Ms Roman’s dismissal meeting constituted misconduct and that “the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction”. Deputy President Colman further noted that, “Ms Roman’s collusion in the secret recording of the meeting …amounted to serious misconduct. It was contrary to her duty of good faith to Mercy. No persuasive reason was offered to justify the recording. It was unfair to the other participants in the meeting. It was not reasonably necessary to protect any valid interest. This conduct warranted dismissal without notice.”

Takeaway for employers

As an employer, an employee’s covert recordings may not become apparent until after a dismissal, once some form of proceeding has commenced. However, this may not matter in terms of making out a valid reason for dismissal in an unfair dismissal claim. Covert or surreptitious recordings go to the heart of the employment relationship regardless of the legality of the conduct because of the impact on the relationship of trust and confidence between an employer and an employee.

Nonetheless, employers should ensure that they have a valid reason for dismissal before terminating an employee’s employment.