With the increasing prevalence of smart phones and other electronic devices, more and more conversations in the workplace and, for example, medical examinations are being recorded, often secretly and/or unauthorised. However, recent decisions of the Fair Work Commission suggests that using secret recording devices in the workplace may be a pointless exercise.
Generally speaking (*), in many cases it not unlawful for private conversations to be secretly recorded without the knowledge of all participants. And, the secret recording may potentially be used in subsequent legal proceedings.
(*) This will depend on the state you are locate in and the relevant privacy laws.
Is a secret recording admissible?
Whilst not determinative of the issue, the starting point when considering the admissibility of a secret recording is whether the recording:
- is of a “private conversation” (as defined in the relevant legislation); and, if so
- was obtained in breach of the relevant listening and surveillance devices legislation.
This may provide a basis on which an employer can object to the admission into evidence of a secret recording.
At a federal level, if an employee secretly records a telephone conversation, it may contravene the Telecommunications (Interception and Access) Act 1979. This Act expressly prohibits the interception, without the knowledge of the person making the communication, of a communication passing over a telecommunications system.
For example, in Victoria, the Surveillance Devices Act 1999 does not prevent a person from recording a private conversation to which they are a party. However, the legislation prohibits communication or publication of the recording unless an exception applies.
By contrast, in Western Australia, the Surveillance Devices Act 1998 does prohibit recording a private conversation to which the person is a party, unless an exception applies. This legislation also prohibits subsequent communication or publication of the private conversation unless an exception applies.
As a general rule, for example, in Queensland:
- it is illegal to record a telephone call with a device physically attached to the telephone – Telecommunications (Interception) Act 1979 (Cth);
- it is legal for a telephone call to be secretly recorded by an external device (e.g. Dictaphone) by a person who is a party to the conversation – s 43, Invasion of Privacy Act 1971 (Qld);
- it is legal for a face to face conversation to be secretly recorded by a person who is a party to the conversation – s 43, Invasion of Privacy Act 1971 (Qld);
- the recording of a conversation by a person who is not a party to the conversation (whether by telephone or face to face) is illegal.
- where the recording is obtained with the express or implied consent of the other parties to the conversation;
- where the person discloses the recording in the course of legal or disciplinary proceedings; and
- where the publication or communication is for the protection of a person’s lawful interests.
However, these exceptions will usually only be available if the party seeking to admit the evidence can satisfy the court or tribunal that disclosing the recording is not more than is reasonably necessary, either in the public interest, or for the protection of the person’s lawful interests.
To admit or not admit?
Even if the recording has been improperly obtained in breach of the relevant State, Territory or federal legislation, the Fair Work Commission, the Federal Court and the Federal Circuit Court each have a discretion to allow admission of the recording into evidence.
The Commission’s discretion is particularly broad.
Unlike the federal and State courts, the Commission is not bound by the rules of evidence and procedure in relation to a matter before it and can inform itself as it sees fit.
In the recent case of Haslam v Fazche Pty Ltd T/A Integrity New Homes  FWC 5593, an employee sought to rely on audio recordings made of two separate meetings with two managers of his employer in support of an unfair dismissal application. The employer objected on the basis that the recordings were made without the knowledge of the two managers.
Commissioner Wilson was satisfied that because the recordings were obtained without the consent of the other parties to the conversation, they were “potentially” made in contravention of the Listening and Surveillance Devices Act 1972 (SA).
Having reached this preliminary view, Commissioner Wilson went on to consider the desirability of admitting
evidence which appeared to have been improperly obtained.
Commissioner Wilson outlined the proper approach to be taken by the Commission in the exercise of its discretion.
In the Commissioner’s view, the provisions of the Evidence Act 1995 (Cth) need to be considered in the context of the Fair Work Act 2009. This requires the Commission to start from a position that illegally or improperly obtained evidence is not to be admitted, with the onus on the party seeking admission to satisfy the Commission that “the
desirability of admitting the evidence outweighs the undesirability of admitting it”.
Factors relevant to the exercise of the discretion
The Commission will consider a number of factors when exercising its discretion to admit a secret audio recording. These factors are set out in the Evidence Act 1995 and include:
- the probative value of the evidence;
- whether the evidence goes to central and contested matters in the proceeding;
- the gravity of the impropriety or contravention by the party in obtaining the recording; and
- the subject matter of the proceeding.
In the Haslam case, the worker sought to admit the recordings to challenge the evidence in the employer’s witness statements. In declining to admit the evidence, the Commissioner considered it relevant that the worker would have an opportunity to put her contentions to the employer’s witnesses in the ordinary course of cross-examination.
In the recent Federal Circuit Court case of Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 3)  FCCA 694, the worker alleged various contraventions of the Fair Work Act by his former employer following his dismissal for misconduct.
The worker alleged, amongst other things, that his employer had exerted undue influence or pressure during the course of the disciplinary meeting at which he was dismissed because he was told he needed to sign a termination letter.
In support of this claim, the employee sought to admit an audio recording which had been made without the knowledge or consent of his manager. The recording was made inadvertently because at the relevant time, the worker was recording conversations which he alleged were taking place in the workplace.
Judge Lucev deemed the inadvertent recording admissible under the Surveillance Devices Act 1998 (WA) because it was no more than reasonably necessary for the protection of the worker’s interests.
His Honour’s reasons in support of the decision were that:
- the recording was the best evidence of what was said at the disciplinary meeting and the tone in which it was said;
- the recording was likely to assist significantly with the question of whether or not undue influence or pressure was exerted by the employer; and
- the gravity of the employee’s impropriety was low given the recording was obtained inadvertently, rather than deliberately or recklessly.
Probative value of a secret recording
The Commission has cautioned that if a secret recording is admitted into evidence, care must be exercised when assessing its probative value.
In Kharb v Eastfield Pty Ltd T/A BP Duaringa  FWC 6403, Senior Deputy President Richards held that where one party to a conversation is aware that a conversation is being taped and another party is not, “issues may arise as to how the knowing party constructs the conversation and manufactures his/her responses”.
In Kharb, the worker sought to admit a secret recording in an unfair dismissal application. Senior Deputy President Richards admitted the recording into evidence as it wasn’t contested by the employer.
Ultimately, the recording was found to be unhelpful to the employee’s case. The recording showed that the worker was not a credible witness and the dismissal was not harsh, unjust or unreasonable. Senior Deputy President Richards observed that the mere fact that the worker brought a recording device to the interview in anticipation of the employer’s reaction suggested that the employee suspected his employment was in jeopardy.
When the tables are turned – secret recordings by employers
Employers may also be faced with the situation where a manager has made a secret recording of a conversation with an employee or union representative.
This type of evidence may reflect poorly on an employer, lead to distrust, suspicion and general disharmony amongst its workforce.
In a legal proceeding a secret recording may reflect poorly on the credibility of the employer’s witnesses.
For example, in the recent “bra-gate” incident the site head contractor Tedra Australia Pty Ltd engaged IR consultant Grace Collier in response to a protest at the City West Water site in Werribee, Victoria. The protest involved the AMWU and one of its organisers.
The Director of the Fair Work Building Inspectorate applied to the Federal Court for an interlocutory injunction against the AMWU and the organiser seeking orders restraining them from participating in the protest and from preventing access to the site (Director of the Fair Work Building Inspectorate v AMWU and Tony Mavromatis  FCA 82).
In her affidavit, Ms Collier disclosed that she had covertly recorded her face-to-face conversations with the AMWU organiser by placing a recording device in her handbag and bra. Ms Collier also recorded a telephone conversation which she had initiated with the AMWU organiser.
Justice Marshall granted the interlocutory injunction but expressed “serious concerns” about Ms Collier’s evidence. His Honour found it would be “unsafe” to rely on the material. He questioned the probative value of the evidence, noting that the transcriptions were inadequate because they contained multiple hand written amendments and statements had been incorrectly attributed to parties.
How should employers manage recording devices in the workplace?
The need for employers to consider their position on recording devices in the workplace may take on greater importance with the commencement of the Commission’s anti-bullying jurisdiction on 1 January 2014.
Employers may then be dealing with secret recordings by employees of meetings which might be used:
- to prove a lack of procedural fairness in subsequent unfair dismissal proceedings; or
- as evidence in an internal investigation into allegations of bullying by a manager or fellow employee.
In this case, employers will need to assess the probative value of the recording in determining whether or not the allegation is substantiated. This will involve managers applying the factors considered by the Commission in the exercise of its discretion to admit recordings into evidence as discussed above. Managers performing this task should be trained and experienced in assessing evidence.
Employers need to apply the same considerations in determining their position on the use of recording devices by the employee for his or her personal benefit, or by staff for the employer’s benefit.
What if a worker asks to record a meeting?
Where an employee (worker) asks to record a meeting, the employer has knowledge of the recording. If the
employer does not overtly object, the employer may have given implied consent to the recording under relevant legislation. This means the recording may be lawful. The employer may not be able to contest the admissibility of the recording in a later proceeding on the basis that it was unlawfully obtained.
Before adopting a knee jerk response to refuse any request (by either an employee or a manager) to record a meeting, employers should consider:
- What is the purpose of the meeting?
- Who is conducting the meeting and how experienced is that person in this role?
- Will the employee have a support person present?
- Will the employer representative have a separate note taker present?
- What are the possible consequences of the meeting for both parties?
- What may happen if the request is refused – is there a risk the employee will refuse to participate in any meeting so the entire investigation, disciplinary or performance process may become document-based, be delayed and the employer loses the opportunity for the direct contact and observation that occurs during face to face meetings?
- What method of recording is proposed?
- How secure is the proposed method of recording– will it prevent the recording being tampered with?
- Does the employer have facilities available to quickly prepare a complete and accurate transcript of the recording following the meeting?
- Would a recording and/or transcript of the meeting assist the employer?
Can an employer ban recordings of workplace discussions?
As a practical matter, it could be difficult for an employer to enforce a ban on recording workplace meetings. There is a risk that a ban could backfire and result in more secret recordings of meetings.
When the Commission is considering whether to admit a recording, some of the potential issues are whether the recording was lawful, its probative value, whether relevant people knew that they were being recorded, the process for authentication of the recording, the audio quality and the possibility that one or other of the participants has been unfairly induced into making admissions. And even if parties consent to the recording being admitted, the Commission might still decide not to admit it. If, for example, the recording was unlawful or contained embarrassing or scandalous material about third parties, the Commission might consider that it would be contrary to the public interest to have the recording go into evidence. But the prevalence of recording technology in phones and tablets and the widespread recording of other material these days suggest that secret recording of employment discussions and other workplace exchanges is likely to increase rather than diminish.
Four legal cases involving secret recordings
Secret recording case 1: Haslam v Fazche Pty Ltd T/A Integrity New Homes  FWC 5593
As we’ve discussed above, workers and employers increasingly seek to protect themselves by making audio recordings of important or critical employment-related meetings.
However, a fairly recent decision of the Fair Work Commission suggests that using secret recording devices may be a pointless exercise.
In a hearing relating to an unfair dismissal case, Fair Work Commissioner (Wilson) ruled that a worker’s secret recordings of meetings with her managers were inadmissible as evidence.
In this case, the worker had basically secretly used a recording device to record 2 separate meetings with her managers prior to her dismissal. The worker sought to admit this evidence in response to what she had read in those 2 managers’ witness statements. The worker’s argument was that the managers had given false evidence in their witness statements and that this would be proven by admitting the recordings into evidence.
The Fair Work Act 2009 (Cth) gives the Fair Work Commission a wide discretion in relation to the admissibility of evidence. The FW Commission is not bound by the rules of evidence and procedure in relation to a matter before it but that is not to say that the Commission should not have regard to such rules in making its decisions (as Wilson stated in this case).
FW Commissioner Wilson was satisfied that because the recordings were made without the knowledge of the managers, they were potentially made in contravention of the applicable Listening and Surveillance Devices Act 1972 (SA). Wilson concluded that such evidence was therefore not routinely available for admission to evidence because it was most likely obtained improperly or in breach of an Australian law.
Wilson furthermore agreed with the principle that the onus should be on the person seeking to admit the evidence to satisfy the Commission that the desirability of admitting the evidence outweighs the desirability of not admitting it. In this case, the FW Commissioner ruled that the secret recordings potentially assisted the worker’s claims but were unlikely to determine the issues before the Commission. Wilson noted that the worker, who was self-represented, would in any event have the opportunity to put her arguments to the witnesses in cross-examination.
Both employers and workers should obtain the consent from other parties when using a recording device to make a tape recording of meetings with workers. If the parties have consented to the recording being made, they are more likely to be lawful and accepted as evidence by the (Fair Work) Commission.
In many cases, secret recordings made unlawfully will not be admissible as evidence in a FW Commission proceeding. It is however a matter of discretion as to whether the Commission admits such evidence. A critical consideration for the Commission will be whether the recording has been made in breach of surveillance legislation. Different Australian States have different surveillance legislation.
Secret recording case 2: Kharb v Eastfield Pty Ltd (2013)
In the Queensland case of Kharb v Eastfield Pty Ltd (2013), Senior Deputy President (Richards) considered whether a conversation that a worker had recorded on his mobile phone could be admitted as evidence. The other party to the conversation, the employer, had not consented to the recording. However, the employer did not object to the transcript of the recording being relied upon for the purpose of the worker’s evidence.
Senior Deputy President (Richards) looked at the issue by referring to the provisions of the Invasion of Privacy Act 1971 (Qld). According to this legislation, a person can legally make a recording of a private conversation so long as they are a party to the conversation. Whilst it is generally unlawful to publish or communicate such a recording, there is an exception for publication or communication made in the course of legal proceedings. On the basis of these provisions, the Senior Deputy President concluded that it was permissible to consider the content of the secret recording. He also noted that the question of whether the recording was probative (proved a fact or issue) was a separate one. In other words, the issue of whether or not the recording was accepted as evidence was a matter for him to decide. He accepted the transcript of the recording as evidence. The worker was however unsuccessful in his unfair dismissal claim.
Secret recording case 3: Schwenke v Silcar Pty Ltd t/a Silcar Energy Solutions (2013)
In the Western Australia case Schwenke v Silcar Pty Ltd t/a Silcar Energy Solutions (2013), Commissioner (Cloghan) considered whether secretly recording a conversation in the workplace was a valid reason for termination of employment. Commissioner Cloghan concluded that it was. He concluded that “secretly recorded discussions are objectionable because one party is being deceptive and purposefully misleading the other party”. He stated that such conduct was in breach of a worker’s duty of good faith and fidelity to his or her employer, and undermined the mutual trust and confidence required in the employment relationship.
Cloghan did however note that there may be some circumstances where a worker will be justified in secretly recording workplace conversations. He stated that such occasions may be limited to “one-on-one actions in relation to discrimination, harassment or bullying…but the gravity and cause would have to be significant to override the general requirement of dealing honestly and openly with the employer and work colleagues. In such circumstances, the Commission would have to be acutely conscious to provocation or entrapment.”
Secret recording case 4:Thompson v John Holland Group Pty Ltd  FWA 10363
A rail worker was unsuccessful in his unfair dismissal application. The worker was dismissed for secretly recording a conversation with his managers on his iPhone. Fair Work Australia held that the worker’s actions breached his employer’s Code of Ethics and appeared to be a breach of the Surveillance Devices Act 1998 (WA).
The worker was employed by the John Holland Group Pty Ltd (‘the company’) in the position of Rail Safe Coordinator. Following a safety incident involving the worker in March 2012, he was transferred to the company’s Midwest project. On his first day at the Midwest project, the worker met with the Project Manager and the Construction Manager to discuss his new position. The worker secretly recorded the meeting on his iPhone. About one week later, he played parts of that recording to his supervisor, stating that he recorded all his conversations to “cover my arse”. The supervisor subsequently reported the incident to the company.
The company launched an investigation into the worker’s conduct which concluded that he had breached its Code of Ethics by engaging in unlawful activity under the Surveillance Devices Act. The unlawful activity was alleged to have included recording a private conversation with persons without their knowledge or consent and sharing that recording with others. In addition, the investigation found that by making the recording and then sharing it, the worker had breached the duty of trust and confidence in the employment relationship with the company and his colleagues. The worker was dismissed with pay in lieu of notice.
The worker subsequently made an unfair dismissal application, maintaining that he had made the recording because he felt that his job was under threat. However, the Commissioner (Williams) did not accept this evidence. Williams stated that the worker had made the recording to show his supervisor that he was able to, and had, recorded conversations on his iPhone. The worker had no objective reason to believe that the conversation with the two managers had any potential to affect his lawful interests and no proper basis to have concluded that it was necessary to record the conversation to protect those interests. The Commissioner agreed with the company that the worker’s actions were, at first sight, a breach of the Surveillance Devices Act.
Commissioner Williams concluded that the worker’s conduct was “seriously wrong and inexcusable” and agreed with the company that, as a result, the relationship of trust and confidence between the worker and the company had been destroyed. He held that the worker’s failure to answer direct questions that were reasonable and relevant to the investigation “was a failure to be open and honest and cooperative”. This further undermined the relationship. The unfair dismissal application was dismissed.