We refer back to our two popular Secret Recordings articles “Is it lawful to secretly record a conversation on a smart phone at work? ” and ” Is making a secret recording of a conversation in the workplace against the law?” and took the opportunity to dig a little deeper into this complex topic.
The questions we asked our lawyer are whether or not a secret recording of a discussion with your boss (or anyone in your workplace really) offer you any protection in termination (sacking) or bullying cases? And, most importantly, is it even legal?
Does a secret recording of a discussion with your boss offer you any protection in termination or bullying cases?
The incidence of secretly (aka covert) recorded conversations between injured workers and bosses/supervisors/managers etc is definitely on the rise. And, as previously mentioned, Smart phones have also made it -technologically- easier than ever.
But does a secret recording of a discussion with your (employer) offer you any protection in for example (unlawful/unfair) termination cases? And what about bullying cases? Is it even legal? As legal as we thought?
Why is that?
In this dispute with the Newland Food Company based in QLD, an (injured) worker basically secretively taped his conversation with his management because he was scared that he would be threatened with legal action if he pursued a workcover claim and he also he also did it in order to support his claim for redundancy payments after being demoted.
Although the Commission found that the decision to sack this worker was “capricious, ill founded, fanciful, spiteful and prejudiced”, and indeed awarded him just about 26 weeks’ pay, the Commission however refused to reinstate the worker because they found that the secret recording he had made of the conversation with his supervisor had destroyed their relationship of “trust and fidelity”.
The bad news is that, while the worker won about 26 weeks’ pay in compensation, he did lose his chance to get his job back. Would this worker have settled for this result had he known that he would lose his job because he covertly recorded the conversation?We don’t think so, given he was afraid to lose his job!
The Fair Work Commission, in this case, however accepted the tape recording as evidence.
Laws are in place under which secretly taped discussions are not only inadmissible as evidence, and illegal
Laws under which secretly recorded discussions are not only generally inadmissible as evidence, but some are outright illegal.
Here’s an example of an illegal secret recording
In another case (Haslam v Fazche Pty Ltd T/A Integrity New Homes  FWC 5593 (12 August 2013)), the Fair Work Commission considered the admissibility of covert recordings made of 2 meetings with [management].
The employer argued that although the question of admitting the recordings was up to the Commissioner’s discretion, they were illegal under the Listening and Surveillance Devices Act 1972 (SA), and should be excluded based on this and certain other provisions of the Evidence Act 1995 (Cth), the Fair Work Act 2009 (Cth) and the Common Law.
The commissioner ultimately concluded that the secret recordings were “most likely obtained improperly or in contravention of Australian law”
While the judgment contained further complex issues, the fact of the matter was that the Commissioner was not convinced to admit the evidence.
But it is not always illegal or inadmissible
The Federal Court however had a different view. In the case of Wintle v RUS Cementation Mining Contractors Pty Ltd (No. 3)  FCCA 694 , a judge admitted a “secret” mobile phone recording of a meeting that had accidentally been made by a worker into evidence in a general protections claim.
The judge decided that the covert recording was likely to assist in determining an issue concerning whether undue influence or undue pressure was exerted at the meeting, and that “the desirability of admitting the recording outweighed the desirability of not admitting it, even if the recording had been obtained improperly, as a result of an impropriety or in breach of Australian law.”
To secretly record or not to secretly record?
Previous industrial cases have shown that covertly taped discussions with [an employer] to support your version of events can at best lead to mixed results, or to a result that you don’t want.
So think again before you tape.
Our best advice
If you are worried about being pressured by your boss or supervisor, or having your version of events disputed (i.e. in a bullying case), take a co-worker with you to your meeting. Or better still, request the presence of your union representative.
[Post dictated by WCV and manually transcribed on behalf of WCV]