In just a few days (from January 1) workers who believe they have been bullied in the workplace will be able to apply to the Fair Work Commission for an order to have it stopped. The Fair Work Commission will only have 14 days to deal with a complaint, which is a very tight time frame. Given the numerous grey areas with regards to what bullying is and what it is not (e.g reasonable management action), workers who believe they are being bullied will want to gather evidence…hard evidence.
Is making a secret recording of a conversation in the workplace against the law?
A worker may want to record a conversation in the workplace for a number of reasons, including perceived bullying. 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/boss/manager may be none the wiser. What better way to gather and preserve much needed hard evidence!
Several recent decisions of the Fair Work Commission have addressed the issue of whether recordings made by workers without the knowledge of their employers can be admitted as evidence in unfair dismissal proceedings. The verdict: it’s not all bad news for workers and for their employers.
Isn’t making a recording of a workplace conversation/meeting against the law?
It depends which part of the country the employer’s business is located as to whether making a secret recording is against the law.
In SA though, the recording must be to protect the worker’s position in any dispute about their employment.
In every other state and territory, it’s unlawful for a worker to record a conversation without seeking permission from the other parties to the conversation. There are however exceptions in each state and territory, including for example if a person consents to a recording by a second person to protect the first person’s position in a dispute about their employment.
When are secret recordings likely to be admitted?
Some workers have tried to have secret recordings of conversations with their employer admitted as evidence in recent cases in the Fair Work Commission.
The admission of a secret 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 secret recording is more likely to be admitted as evidence in Commission proceedings if:
- 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);
- the recording is lawful i.e. it does not contravene State or Territory legislation, which is more likely if it occurred in Queensland, Victoria, NT or SA;
- the admission of the recording is desirable because it is useful having regard to the subject of the proceeding;
- the recording is the best evidence available of the conversation or interaction; or
- the recording will significantly assist the worker’s claim.
It may be bad news if a secret recording is admitted
Even if the recording is admitted it may not necessarily be in the worker’s best interests!
The secret recording of conversations can, of course, raise issues of trust and confidence, as the employment relationship can be undermined by the secretive nature of the recording. It is expected that a worker 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. As you can guess most workers who have undertaken and admitted covert recordings are not reinstated (i.e. if unfairly dismissed), and some can be sacked for doing so.
- Employers can have policies in place 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 secretly 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 employers can also ensure conversations about “performance or disciplinary issues” are well-documented…
Cases of interest
1Carol Haslam v Fazche Pty Ltd t/as Integrity New Homes  FWC 5593 (12 August 2013); Devender Kharb v Eastfield Pty Ltd t/as BP Duaringa  FWC 6403 (9 September 2013).
2 Wayne Schwenke v Silcar Pty Ltd t/as Silcar Energy Solutions  FWC 4513 (22 August 2013); Trevor Thomas v Newland Food Company Pty Ltd  FWC 8220 (21 October 2013).
A good place to find all state and territory regulations of privacy regulations can be found here: http://www.alrc.gov.au/publications/2.%20Privacy%20Regulation%20in%20Australia/state-and-territory-regulation-privacy
- Is it lawful to secretly record a conversation on a smart phone at work?
- Recording independent medical examinations and workcover telephone conversations
- Find more using the word ‘recording’ in the Search box
[Post dictated by workcovervictim and manually transcribed on behalf of WCV]