With the increased availability of, and access to, technology such as smartphones that can enable employees to covertly record workplace conversations, it is important that employers are aware of how such recordings may be used.
While you may not be able to prevent an employee from secretly recording a disciplinary or termination meeting, there are some limitations that apply as to how the information obtained can be used. Under Australian legislation, there are different provisions which apply to the covert recording of telephone conversations compared to recordings taken of in-person conversations or meetings.
Recording of telephone conversations
In Australia, the recording of telephone conversations is governed by the Telecommunications (Interception and Access) Act 1979. This Act operates in conjunction with state-based legislation and contains a broad prohibition on the recording of telephone conversations without the knowledge of the other party.
However, it is important to note that the application of this prohibition can be limited by the actual device used to record the telephone conversation. For example, case law has held that if a recording application on a smartphone is to record incoming and outgoing conversations as they are occurring, without consent, it will be considered unlawful. However, if the conversation is recorded after it has been received by the device (such as a via a recording device sitting next to a smartphone while the call is on loudspeaker), this recording may not automatically be deemed unlawful under the Telecommunications (Interception and Access) Act 1979.
However, case precedence does support that unlawful telephone recordings are unlikely to be accepted by the Fair Work Commission as being admissible evidence when hearing a workplace dispute.
Recording in-person meetings
The recording of conversations held in person, such as a disciplinary meeting, are governed by state-based legislation. It is important to note that the legislation does differ depending on the State in which employment is performed.
For example, Victorian employees are covered by the Surveillance Devices Act 1999 (Vic). This Act does permit the use of a recording device to record private conversations to which the individual is a party without the consent of the other parties involved. However, there are restrictions on how such a recording may be used.
Knowingly publishing or communicating a secretly recorded conversation is prohibited, except where such action is reasonably necessary to protect the individual’s lawful interests. Similar provisions apply in the Northern Territory and Queensland.
Given this, it is not uncommon for an employee to seek to produce such a recording as evidence during a workplace dispute or Commission hearing. While such a recording may assist an employee to establish or support procedural concerns, such as wording used by their employer or the sequence of events, doing so will not always be in the employee’s best interest.
The Fair Work Commission has been somewhat consistent in holding a view that the making of secret recordings can constitute a valid reason for dismissal. In many instances, the covert recording of conversations or meeting will be considered damaging and breaking a relationship of trust and confidence with the employer. Given this, by secretly recording a meeting and relying on this as evidence before the Commission, the employee may unintentionally create a valid reason
(that may not have otherwise existed) which supports that their dismissal was warranted. In other words, the employee’s conduct in making the recording could potentially be used against them by their employer when defending an unfair dismissal claim.
However, unlike the Fair Work Commission, Australian Courts are governed by the Evidence Act 1955 and generally tend to be more accepting of covert recordings. Provided that the secret recording submitted as evidence does help to establish the claim being heard, an employee would not, and could not, be prejudiced for having made the secret recording.
Determining whether a covert recording would be deemed lawful or not can depend on a variety of often complex factors. Similarly, the manner in which covertly obtained recordings will be treated during an employment dispute hearing will also vary significantly between different proceedings and jurisdictions. Given this, legal advice may need to be sought if you are presented with a recording that has been made without your consent.
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