Many employees have their own mobile phones in the workplace; but not all employers have policies that regulate the use of personal or employer-supplied mobile phones.
Recent legal decisions involving employees who covertly recorded conversations on their mobile phones considered whether the evidence recorded on their phones could be used in hearings before the tribunal or court involved, with different results. They also discuss the impact of this type of conduct on the employment relationship.
Surveillance devices legislation
All Australian jurisdictions have legislation intended to restrict the use, communication and publication of information obtained through the use of surveillance devices, such as the Surveillance Devices Act 2007 (NSW). Under these laws, "devices" include mobile phones that can record conversations.
Generally speaking, the legislation provides that devices cannot be used to overhear, record, monitor or obtain private information or communications without the consent of the people involved. These provisions are not limited to the workplace.
However, the legislation also provides that such actions may be considered permissible if covered by an exemption within the legislation, for instance when it is "reasonably necessary" for the protection of the person's lawful interests.
Contraventions of these acts may result in penalties ranging from fines to imprisonment, for example in NSW this is up to five years' imprisonment.
In Haslam v Fazche Pty Ltd t/as Integrity New Homes  FWC 5593, Ms Haslam sought to rely on recordings of meetings with two managers of her former employer, Fazche. Ms Haslam alleged that she had been constructively dismissed and asserted that the recordings, which she made covertly and without the knowledge of the managers involved, showed that she was forced to resign.
She asked the Fair Work Commission to admit this evidence. Her employer opposed this.
Commissioner Wilson noted that he would start from the position that evidence improperly obtained under the relevant South Australian legislation would not be admitted, unless he was convinced that the desirability of admitting the recordings into evidence outweighed the undesirability of admitting them. The Commissioner concluded that, in this case, while the recordings "may potentially assist" in determining the claim, it was unlikely they would solely determine the primary issues in dispute.
The recordings were rejected as inadmissible. In Wintle v RUC Cementation Mining Contractors Pty Ltd (No 3)  FCCA 694, Mr Wintle similarly recorded a conversation with a supervisor, Mr Hazell, without his consent.
However, unlike Ms Haslam, Mr Wintle had inadvertently recorded a meeting with Mr Hazell when he had intended to covertly record conversations with other people at work whom he alleged had been subjecting him to race discrimination. When Mr Wintle was terminated for performance issues, he considered that the inadvertent recording involving Mr Hazell may assist in establishing his breach of contract claim.
Unlike Ms Haslam's matter, the employer consented to the admission of the recording and the court ultimately accepted it, despite it being "the result of an impropriety or in contravention of Australian law". It was admissible as it was:
- the best evidence of what was said at the meeting
- likely to assist significantly with determining a relevant fact in issue, and
- inadvertently (as opposed to intentionally) obtained.
In Thomas v Newland Food Company Pty Ltd  FWC 8220, Mr Thomas covertly and intentionally recorded numerous conversations with human resources and management representatives of his former employer, Newland.
Newland did not object to the use of the recordings and ultimately sought to rely upon them in support of their position. However, Deputy President Sams commented on what he considered to be the "more serious issue", that is, the impact of covert recordings in the workplace on the employment relationship.
DP Sams was of the view that "there could hardly be an act which strikes at the heart of the employment relationship, such as to shutter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she had with management". While he conceded that "there may be sound reasons why an employee (or an employer for that matter) believes it is necessary to secretly tape workplace conversations" he maintained that such conduct is "well outside the normal working environment and contrary to the well understood necessity for trust and fidelity in the relationship between employee and employer".
It was maintained that these circumstances would generally demonstrate a complete breakdown of the employment relationship and militate against the employee returning to work.
Practical guide for employers
These cases deal with the admissibility of evidence obtained by mobile phones, with differing outcomes.
The usual approach taken by the courts will be that covert recordings in a work environment will be inadmissible unless it can be shown that the potential benefits of admitting the evidence outweigh the undesirability or prejudice that may be suffered. If both the employee and the employer consent to the use of such information in proceedings, it is likely that a tribunal or court will include the evidence.
Beyond the issue of admissibility in proceedings, the cases may also have implications for employees with defined obligations under policies or codes of conduct that require them to deal with others in the workplace in an open and honest manner.
Arguably, a covert recording of a conversation with a fellow employee or a supervisor may breach such a policy or code, or even the implied term of mutual trust and confidence that exists between employer and employee.
Employers may want to consider whether they require employees to attend meetings without mobile phones (and other recording equipment) or to declare that they are not recording a meeting before it commences. These requirements may be included in general policies covering the appropriate use of mobile telephones or audio-visual devices in the workplace.
While the implementation of these policies may not completely alleviate issues associated with covert recording by employees, it would likely improve the employer's position in protecting its interests. For example, a policy that states the recording of private conversations without consent is not permissible may assist an employer in resisting the admission of this information in proceedings. It may also warrant disciplinary action against any employees involved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.