Getting in front of covert recordings (Australia)


[co-author: Carly Traeger]

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 law.

In Queensland, Victoria and the Northern Territory (NT), it is not unlawful for an employee to record a conversation covertly if they are a party to the conversation.

In every other State and Territory, it is generally unlawful for an employee to record a private conversation without seeking permission from other participants - unless the recording is to protect a "lawful interest". In South Australia, any employee who participates in a conversation and records it to protect their lawful interests may fall within the exception. In New South Wales, Western Australia and Tasmania the recording must also be "reasonably necessary" to protect the employee's lawful interest. In the ACT the recording must be considered by the employee "on reasonable grounds" to be necessary for the protection of the employee's lawful interest. Employees may seek to rely on these exceptions if they make a recording to protect their position in a current or potential 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 Commission1.

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 fit.

A covert recording is more likely to be admitted as evidence in Commission proceedings if:

a) 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 case);

b) the use of the recording is lawful i.e. it does not contravene State or Territory legislation, which is more likely if it occurred in Queensland, Victoria or the NT;

c) the admission of the recording is desirable because it is useful having regard to the subject of the proceeding;

d) the recording is the best evidence available of the conversation or interaction; or

e) the recording will significantly assist the employee's claim.

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 recordings2. 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 prepared by:

a) 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 employment); and

b) ensuring conversations about performance or disciplinary issues are well-documented.

Please contact a member of the Employment group at DLA Piper for more information.

1) Carol Haslam v Fazche Pty Ltd t/as Integrity New Homes [2013] FWC 5593 (12 August 2013); Devender Kharb v Eastfield Pty Ltd t/as BP Duaringa [2013] FWC 6403 (9 September 2013).
2) See Wayne Schwenke v Silcar Pty Ltd t/as Silcar Energy Solutions [2013] FWC 4513 (22 August 2013); Trevor Thomas v Newland Food Company Pty Ltd [2013] FWC 8220 (21 October 2013).