Secret recordings of conversations in the workplace

The evolving world of smartphones and accompanying recording applications has caused a significant increase in employees making secret recordings during disciplinary or performance review meetings, or during conversations with their managers.

In several recent cases, employees have attempted to use secret recordings as evidence in legal proceedings. The courts have found that secret recordings made by an employee of meetings or conversations may be admissible into evidence in legal proceedings, even if it has been obtained by unlawful or improper means.

When can a conversation be lawfully recorded?

Different legislation applies in each State and Territory in relation to the recording of conversations. For example, in Victoria, employees are free to record “private conversations” to which they are a party.

However, employees are only able to lawfully communicate or publish such private conversations in the following circumstances:

• The recording was expressly or impliedly consented to by each party to the conversation; or
• The communication or publication is for the protection of the employee’s lawful interests or the public interest; or
• The recording is disclosed in the course of legal or disciplinary proceedings

Federal legislation goes further and prohibits the recording or interception of telephone conversations (exceptions apply for law enforcement agencies and in other limited circumstances).

Even if an employee can lawfully record and communicate a private conversation, it is ultimately a matter for the Court or Tribunal whether the recording will be admissible in proceedings.

When are recorded conversations admissible in court?

The Fair Work Commission (FWC) and the courts have discretion to allow admission of secret recordings into evidence even if the evidence has been obtained improperly and without the knowledge of the employer.

In exercising this discretion, the FWC and the courts may consider a number of factors, such as whether the recording is lawful, the probative value of the recording, the importance of the recording as evidence in the proceeding, the gravity of the employee’s impropriety and the subject matter of the proceeding. The desirability of admitting the evidence needs to outweigh the undesirability of admitting it.

For example, in the recent case of Haslam v Fazche Pty Ltd, an employee sought to admit secret recordings of two separate meetings with two managers into evidence to demonstrate that she was dismissed and did not resign as heremployer argued.

The FWC found the recordings were most likely obtained improperly or in contravention of the law and while they could have potentially assisted the employee’s argument, the FWC ultimately determined that the two recordings should not be admitted to evidence as the employee would be able to put her contentions to the employer’s witnesses in cross-examination.

Tips for Employers

• During disciplinary or performance review meetings, termination meetings or informal conversations with managers, employers should be aware of the potential for the conversation to be recorded
• If an employee asks to record a meeting and the employer does not wish to be recorded, the employer should make it expressly clear that it does not consent to the recording. Otherwise, there is a risk that the employer will be deemed to have given implied consent to the recording. In the event an employee still records the meeting, this will be a disciplinary matter
• An employee’s request to record a meeting may raise red flags. If the request is refused, the employer should ensure good notes are taken of the meeting to counter any later challenge by the employee as to what was said at the meeting
• Employers should consider adopting appropriate policies in relation to the use of mobile phones in the workplace which address the use of recording devices

HR Legal is happy to assist with any queries you might have regarding this, and other employment law issues.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.