Secret recordings have made headlines in recent times. In October 2015, embattled Fair Work Commission vice-president Michael Lawler admitted on television that he had recorded conversations with his boss, Fair Work president Iain Ross, over a number of years. In May 2015, media reports surfaced that Justice John Byrne had secretly recorded on his smartphone an expletive-laden meeting with Chief Justice Tim Carmody of the Queensland Supreme Court.
It’s understandable that people might want to record conversations. Evidence about what’s said in the workplace is often an important part of investigations into employment disputes. Different people may have completely different recollections of a conversation, and those memories may dim in the weeks and months it takes before an investigation or court case takes place. People simply want to protect themselves.
Yet while smartphones are an easy way to accurately record interactions, hitting the record button is not always legal. Employees who make covert recordings have sometimes found the tactic leads to unhappy consequences.
In the 2013 case of Haslam v Fazche Pty Ltd, an employee wanted to use covert recordings of two meetings with her managers as evidence she was dismissed and did not resign from her job. However, the Fair Work Commission refused to admit the recordings as they were potentially made in breach of the relevant South Australian legislation. They concluded that the woman could put forward her own view of those meetings from the witness box.
However, in a similar case in Western Australia, the Federal Circuit Court decided to admit a recording of a disciplinary meeting because the employee had made it inadvertently, and the judge decided it did not appear to contravene Western Australia’s surveillance device legislation.
Are secret recordings grounds for dismissal?
Regardless of legality and admissibility, employees who secretly record conversations in the workplace may find themselves in hot water. The Fair Work Commission has decided in a number of cases that employees who engage in this behaviour risk undermining the relationship of trust and confidence with their employer.
In Wayne Schwenke v Silcar Pty Ltd, an employee who had been given a first and final warning over performance issues revealed to his manager that he had taped a previous meeting. The manager viewed this as serious and potentially unlawful misconduct and dismissed the employee. The Fair Work Commission agreed the covert recording was a valid reason for dismissal and rejected the employee’s unfair dismissal claim.
Elizabeth Ticehurst is Special Counsel – Employment at KPMG.
