In the age of smart phones, it’s easier than ever to record conversations at work. In any meeting at the workplace, it is almost certain that at least one person has a smartphone in their pocket that can record voice at the touch of a button. For those who are being bullied at work, what better and tempting way to preserve some hard needed evidence to prove you have been genuinely bullied!
Secretly taped conversations of meetings (incl. incidences of alleged bullying in for example 1 on 1 meetings) are increasingly popping up in proceedings at the Fair Work Commission. However, so far, the Commission has taken a very dim view of such conduct, finding that the secret recording of conversations can “breach the employee’s duty of trust and confidence”.
So the question is, is it lawful to secretly record a conversation on a smart phone?
The lawfulness of covert recording of conversations is governed by State legislation. Each State has enacted its own surveillance legislation which differs in some important respects.
A failure to obtain express or implied consent can be a breach of the law which may result in criminal punishment. There are various defences – for example, some legislation allows secret recording where it is reasonably necessary to protect the legal interests of the recorder. Careful examination of the legislation of the State you operate within is required.
What is the Fair Work Commission’s view on covert recordings?
In Thomas v Newland Food Company  FWC 8220, the employee (and injured worker) secretly recorded a number of discussions he had with his operations manager, as well as the meeting in which he was dismissed. He also took photos of alleged food mishandling practices and allegedly told colleagues that he was going to report the employer to authorities.
The Deputy President found that the injured worker’s dismissal was unfair (for other reasons), but nonetheless refused to order reinstatement because of his covert recording practices, sending a warning to secret recorders:
“In my view, there could hardly be an act which strikes at the heart of the employment relationship, such as to shatter 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 has with management.”
The Deputy President’s findings add to the views recently expressed by other members of the Commission that secret recordings are:
- “quite properly described as sneaky [and] … abhorrent to ordinary persons dealing with each other in a proper fashion” (Senior Deputy President Drake in Lever v ANSTO  AIRC 784);
- “deceptive and purposely misleading” (Commissioner Cloghan in Schwenke v Silcar  FWC 4513); and
- “seriously wrong and inexcusable … [and] a valid reason for dismissal” (Commissioner Williams in Thompson v John Holland  FWA 10363).
[Post dictated by WCV and manually transcribed by T on behalf of WCV]