If you're an employer reading this – chances are you've recently learned that your employee's smartphone was, without your knowledge, on record... the whole time.
Or perhaps you're in possession of an audio recording that raises concerns regarding your employee's conduct at work?
Naturally you might be thinking:
- Is the recording legal?
- Can I trust the employee anymore?
- Am I placed to use the recording to my advantage?
In this article we debunk some of the myths surrounding secret recordings and aim to demystify the legalities.
Are secret recordings lawful?
The short answer is sometimes, because it depends on which state or territory you're in.
Where a person is not a party to a private conversation, surveillance legislation in all states and territories generally prohibits a person secretly recording that conversation. Limited exceptions apply across all jurisdictions, including for law enforcement purposes.
On the other hand, surveillance legislation operating in Victoria, Queensland and the Northern Territory generally permits a person to secretly record a private conversation, provided that person was a party to the conversation.
For example, in Victoria:
- An employee will be entitled to record a confidential performance management discussion with their employer, provided the employee directly participated in that discussion;
- However, an employee will not be lawfully entitled to place a listening device in a room and record a private conversation that they were not a party to.
Even if a secret recording is lawfully obtained, it can still be unlawful for the recording to be communicated or published to a third party without the consent of the participants to the conversation.
Does the same apply to telephone calls?
The Telecommunications (Interception and Access) Act 1979 (Cth) operates in conjunction with state based surveillance legislation and imposes additional restrictions on the recording or interception of telecommunications systems (including telephone calls). Where a telephone call is recorded, consent must generally be obtained for that recording to be lawful (which explains the pre-recorded message each time you call your insurer).
How do courts treat secret recordings in cases involving termination of employment?
Where an employee seeks to rely on a secret recording, the value or utility of that recording will change depending on the precise legal claim made by the employee.
In the context of unfair dismissal claims for example, there is a growing consensus among industrial tribunals that recording colleagues without consent is inappropriate. The Fair Work Commission has, time and time again, denounced such behaviour and deemed secret recordings to constitute a form of misconduct.1
Further, a surreptitious recording itself can in some cases give employers a valid reason to terminate employment.2
The rationale for denouncing secret recordings in the workplace is helpfully summarised by Deputy President Coleman in Gadzikwa v Australian Government Department of Human Services  FWC 4878, :
Unless there is a justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction. The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.
DP Coleman's sentiments may not, however, be persuasive (or even relevant) where an employee brings a general protections, adverse action or discrimination claim. Here, the Court's assessment is confined to a question of what the substantive or operative reasons for dismissal were (rather than broad notions of fairness). In this instance, an employee may legitimately rely on a lawfully obtained recording as supporting evidence.3
For example, where an employee alleges they were dismissed for exercising a workplace right (in breach of section 340 of the Fair Work Act 2009), a recording may help an employee advance their case and prove the true reasons for dismissal.
- In Victoria, Queensland the Northern Territory, secretly recording a private conversation may be legal – particularly where the person recording the conversation was involved in it.
- National legislation regulates the interception of telecommunications systems – so think twice before you record a telephone call without consent.
- Recording colleagues in a workplace is generally not conducive to a healthy work environment, although it can be helpful evidence where the reasons for dismissal are called into question.
How Moores can help
The era of smart-phones and tablets, together with Australia's adversarial workplace relations system, makes recording conversations tempting and accessible to employees. Employers may err on the side of caution and take the following protective measures:
- Ensure all discussions with employees are conducted in a manner that does not adversely impact their business.
- Consider training managers to be lawful, transparent and fair in their communications with staff – sometimes your business is only as lawful as your 2IC's conduct.
- If you do not want a recording to be made, inform all participants that you do not consent to the use of listening devices – or consider a request for all participants to place electronic devices on the table.
- Have a witness present at all pertinent conversations to take detailed notes – this can be useful where a recording may only reflect a snippet of the actual conversation.
Moores can give you strategic guidance on how to deal with a secret recording in the workplace, and in some cases – use them to your advantage.
1 See for example Green v Lincon Logistics Pty Ltd  FWC 4916; Evered v AHG Services (Vic) Pty Ltd  FWC 9609
2 See Schwenke v Silcar Pty Ltd  FWCFB 9842
3 See Wintle v RUC Cementation Mining Contractors Pty Ltd  FCCA 694
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.