An employee may want to record a conversation in the workplace
for any number of reasons. They might think their manager is trying
to set them up to get them into trouble. They might be trying to
catch out alleged bullying or discriminatory behaviour. Any
conversation at any time could be recorded, and the employer may be
none the wiser.
Several recent decisions of the Fair Work Commission have
addressed the issue of whether recordings made by employees without
the knowledge of their employers can be admitted as evidence in
unfair dismissal proceedings. The verdict: it's not all bad
news for employers.
Isn't making a recording against the law?
It depends which part of the country the employer's business
is located as to whether making a covert recording is against the
In Queensland, the Northern Territory (NT), Victoria and South
Australia (SA), it's not unlawful for an employee to record a
conversation covertly if they're a party to the conversation.
In SA though, the recording must be to protect the employee's
position in any dispute about their employment.
In every other state and territory, it's unlawful for an
employee to record a conversation without seeking permission from
the other parties to the conversation. There are exceptions in each
state and territory, including for example if a person consents to
a recording by a second person to protect the first person's
position in a dispute about their employment.
When are covert recordings likely to be admitted?
Some employees have tried to have covert recordings of
conversations with their employer admitted as evidence in recent
cases in the Fair Work Commission.
The admission of a covert recording can be dealt with by the
Commission either as a preliminary issue prior to the hearing, or
during the hearing itself. The Commission is not bound by the rules
of evidence that would ordinarily apply in a court, and accordingly
has a wide discretion to inform itself of evidence in ways it sees
A covert recording is more likely to be admitted as evidence in
Commission proceedings if:
there is no objection by the employer (which is likely to be in
circumstances where the employer is aware of the contents of the
recording or believes the recording is unlikely to prejudice their
the recording is lawful i.e. it does not contravene State or
Territory legislation, which is more likely if it occurred in
Queensland, Victoria, NT or SA;
the admission of the recording is desirable because it is
useful having regard to the subject of the proceeding;
the recording is the best evidence available of the
conversation or interaction; or
the recording will significantly assist the employee's
It's not all bad if a covert recording is admitted
Even if the recording is admitted it may not necessarily be in
the employee's best interests.
The covert recording of conversations can raise issues of trust
and confidence, as the employment relationship can be undermined by
the secretive nature of the recording. It is expected that an
employee will deal openly and honestly with their employer, and
there would need to be a sound basis for the recording e.g.
bullying or harassment, to displace this expectation. The issue of
trust and confidence is generally considered by the Commission to
be a relevant factor in determining the appropriateness of
reinstatement in dismissal cases.
What should employers do about this issue?
An employer may not be aware that a covert recording exists
until proceedings have already commenced. However, employers can be
implementing a policy about the use of recording devices in the
workplace. Specifically, that the recording of conversations should
only occur with the consent of all parties to the conversation, and
that the use of devices to covertly record conversations otherwise
may be a breach of trust and confidence (which could lead to
termination if the employer becomes aware of the recording during
ensuring conversations about performance or disciplinary issues
1Carol Haslam v Fazche Pty Ltd t/as
Integrity New Homes  FWC 5593 (12 August 2013); Devender
Kharb v Eastfield Pty Ltd t/as BP Duaringa  FWC 6403 (9
September 2013). 2 See Wayne Schwenke v Silcar Pty Ltd t/as Silcar
Energy Solutions  FWC 4513 (22 August 2013); Trevor Thomas v
Newland Food Company Pty Ltd  FWC 8220 (21 October
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).