Since mobile phones have been able to record conversations, it is not uncommon practice for employees to record disciplinary meetings with their employers, without the employers' consent. However, the Fair Work Commission in Barbara Roman v Mercy Hospitals Victoria Limited  FWC 711 has found that this can constitute misconduct and justify dismissal.
Ms Roman worked as a hospital service attendant for Mercy Hospitals Victoria (Hospital) from 1999 until 2 December 2021. Pursuant to Victorian Government directions, the Hospital was prohibited from allowing workers to attend for work unless they had provided it with evidence they had been vaccinated against COVID-19, had made an appointment to receive a vaccination or had a medical exemption.
The Hospital directed its employees to provide such evidence. Ms Roman was then dismissed because she refused to follow these directions. She then filed an unfair dismissal application.
Consideration by the Commission
The Fair Work Commission found that the Hospital had three valid reasons for dismissing Ms Roman:
- She was unable to do her job, in the sense that the Hospital as her employer was prohibited by law from allowing her to attend its premises for work. It did not matter that the employer did not rely on this ground at the time of the dismissal (the Commission has to decide for itself whether there is a valid reason for dismissal, not merely whether the reason relied upon the employer was a valid reason.)
- Ms Roman engaged in misconduct by refusing to follow the Hospital's reasonable and lawful direction.
- She had secretly recorded her termination meeting with the Hospital, which constituted misconduct. The Hospital did not become aware of the recording until after the termination had been effected; however, the Commission noted that evidence of an employee's misconduct that emerges after dismissal can be relied upon by an employer as a valid reason for dismissal.
The Commission considered that, unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence.
The Commission also relied upon the decision of Gadzikwa v Australian Government Department of Human Services  FWC 4878:
The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a recording 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 law. The surreptitious recorder, however, can do all of these things and unfairly put themselves at an advantage. . This is potentially corrosive of a healthy and productive workplace environment.
Reliance was also placed on the decision of the Full Bench of the Commission in Schwenke v Salcar Pty Ltd  FWCFB 9842, where it found that it was open to a Commission Member at first instance to determine that a secret recording made by an employee was contrary to their duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship.
Even though employers will often only find out after a dismissal that a dismissal meeting had been secretly recorded by an employee, they can still rely upon that conduct (as misconduct) in defending an unfair dismissal application on the basis that the employee's misconduct constituted a further valid reason for dismissal. Employers should not be shy to raise such a defence.
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