Secretly recording conversations in the workplace: Is it lawful?

When can a conversation be lawfully recorded?

Each State and Territory has different legislation in relation to the recording of conversations. It is therefore important to identify which State or Territory law applies to determine whether the recording of a conversation in the workplace is lawful.

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
• The communication or publication is for the protection of the employee’s lawful interests or the public interest
• 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. However, 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 and in breach of the applicable State or Territory legislation.

In determining whether to admit the recording, 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.

For example, in the recent case of Thomas v Newland Food Company, an employee sought to admit secret recordings of a number of conversations with management into evidence which he had recorded to protect himself in relation to a conflict about his entitlements.

The FWC found the recordings were not improperly obtained as under the Queensland legislation (like in Victoria), it is not unlawful to secretly tape private conversations to which a person is a party. The recordings were admissible in the proceedings and in fact, both the employee and the employer relied on the conversations in support of their arguments.

The FWC ultimately found that the employee had been unfairly dismissed for reasons unrelated to the secretly recorded conversations but did not order reinstatement as the employment relationship had been significantly undermined by the secret recordings and there was a limited chance of re-establishing the trust and confidence between the employer and the employee.

In another recent case of Schwenke v Silcar Pty Ltd, an employee was dismissed without notice for secretly recording a disciplinary meeting and for performance related issues.

The FWC did not consider the relevant state legislation to determine whether the recording was lawful, as the employee did not seek to produce the recording in the proceedings. Despite this, the FWC held that there was a valid reason for the dismissal being the employee’s misconduct in recording the disciplinary meeting. The FWC reiterated the comments in Thomas’ case that secret recordings undermined the employment relationship because one party is being deceptive and purposefully misleading the other party. The FWC noted that only in limited circumstances will an employee be justified in secretly recording workplace conversations, for example in cases of significant discrimination, harassment or bullying.

4 Tips for Employers

• During disciplinary or performance review meetings, termination meetings or informal conversations with employees, managers should be aware of the potential for the conversation to be recorded and should ensure that they act in accordance with company policies and procedures (if any)
• 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 may be a disciplinary matter
• An employee’s request to record a meeting may raise concerns. If the request is refused, the employer should ensure detailed notes are taken of the meeting to refute any later attempt by the employee to challenge 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

If you require assistance with drafting or updating workplace policies or advice regarding disciplinary matters arising from recording of employment conversations, please contact us.

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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.