In the present day it is easy for an employee to surreptitiously record conversations in the workplace. This presents several significant issues regarding the legality of such recordings, their admissibility in legal proceedings, and whether the act of recording conversations at work is defensible in disciplinary proceedings.
The legal issues associated with recording conversations in a workplace are:
- The legality of recording a conversation
- Is covertly recording a work conversation a valid reason for dismissal?
- Can a covert recording be considered if presented in workplace investigations or legal proceedings?
Background: Altham-Wooding v PKDKAdventures Pty Ltd
In a recent case before the Fair Work Commission (‘FWC’), the Applicant contended that she was unfairly dismissed by her employer in July 2024. The Applicant commenced casual employment with PKDKAdventures Pty Ltd (‘PKDK’) in April 2024 under new management arrangements. The Applicant informed PKDK management, Ms Whittingham and Mr Kennedy, of her unavailability and her typical roster under the previous management. Following that discussion, she observed a reduction in her usual hours in the following weeks. Communications between the employer and employee continued in relation to the suitability of the new hours until the Applicant’s rostered shift was completely removed on 25 May 2024. PKDK initially stated that the change had been made due to a quiet downturn in business, but the Applicant learned that her shift had been given to another colleague.
On 25 May 2024 the employer requested a meeting with the Applicant which she failed to respond to. On 28 May 2024 the Applicant attended the office and requested to speak with management without prior notice. The Applicant was informed that they were not available at that time, however, the Applicant saw Ms Whittingham and Mr Kennedy in the office area. Whilst no meeting took place, the Applicant then used her mobile phone to secretly record her attendance in the office and sought to rely on that recording as part of her evidence before the FWC. On 2 July 2024 the Applicant sent an email seeking clarity with respect to her employment status to which she received no response. On 22 July 2024 the Applicant found that her access to the app she ordinarily used to check the roster had been removed. Whilst the Applicant tendered her resignation on 26 July 2024 the FWC was satisfied that her employment was terminated on 22 July 2024 at PKDK’s initiative.
Covert recordings at work and the law
The law on recording conversations differs across jurisdictions in Australia, however in most states, it is permissible for a person to secretly record a conversation that they are party to if they consider the recording is reasonably necessary to protect their ‘lawful interests.’ Typically, these lawful interests are argued to include protection against bullying, harassment or discrimination; an unfair performance management process, or work, health and safety risks.
For instance, in Queensland, the Invasion of Privacy Act 1971 states that a person can record a private face-to-face conversation without consent as long as they are a party to the conversation. However, recordings of private conversations can only be published or disseminated with the consent of the parties.
Although secret recordings can be lawful, it appears that the FWC takes a dim view of employees doing so – with the latest decision supporting the view that secret recordings can, in reality, provide a valid reason for dismissal.
In Altham-Wooding v PKDKAdventures Pty Ltd[1], Deputy President Saunders rejected Altham-Wooding’s unfair dismissal claim – determining that her secret recording whilst attending her workplace was a valid reason for her dismissal. In his decision, Deputy President Saunders noted the Applicant’s act to be ‘highly inappropriate’[2] and adopted the following observations made in Gadikwa v Australian Government Department of Human Services[3]:
“The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.”
Is covertly recording in the workplace a valid reason for dismissal?
The short answer is yes. The FWC has repeatedly made observations to the effect that secretly recording conversations at work is contrary to the employee’s ‘duty of good faith and fidelity to its employer’ and it weakens ‘the trust and confidence required in the employment relationship.’[4] The action in itself is grounds for summary dismissal.
In Altham-Wooding v PKDKAdventures Pty Ltd, the Commission again established that a covert recording may be a valid reason for dismissal. The FWC found that the covert recording by the Applicant attending the workplace undermined the trust and confidence of the employment relationship and was a valid reason for dismissal.
Ms Altham-Wooding’s recording, discovered after the dismissal and during the proceedings, was found to be a valid reason for dismissal and successfully relied on by the employer. If the employer found the recording during the employment and followed a fair procedure, the employee could, based on her making of the recording, be validly dismissed. In order to be ‘valid,’ the FWC was satisfied that the Applicant’s act provided her employer with a ‘sound, defensible and well-founded reason’[5] to terminate her employment.
Legal Admissibility
In Altham-Wooding v PKDKAdventures Pty Ltd, the Deputy President did not accept the recording into evidence despite the Applicant’s submissions. The purpose of recording a conversation in the workplace is to provide evidence of another person’s wrongdoings. However, due to the way such evidence is obtained, the recording may not be admissible within any legal proceedings.
In determining whether to admit a surreptitious recording, the tribunal or court will consider numerous aspects, including the subject matter of the recording, the importance and probative value of the evidence, and the gravity of the impropriety in making the recording in the circumstances.[6]
Key points for Employers
- Determine whether covert recording of private conversations is lawful or not in your state or territory.
- Even if it is lawful, surreptitious recording of a workplace conversation can destroy the trust and confidence in an employment relationship and may provide valid reasons for dismissal.
- Consider implementing workplace policies to address covert recording of a workplace conversations.
Vocare Law is well equipped to assist our employment and discrimination clients with a wealth of collective knowledge and over two decades’ experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions regarding dismissals and or covert recordings, contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Eva Williams.
**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.
Footnotes
[1] [2024] FWC 2753.
[2] Altham-Wooding v PKDKAdventures Pty Ltd [2024] FWC 2753 at [43].
[3] [2018] FWC 4878.
[4] Schwenke v Silcar Pty Ltd [2013] FWCFW 9842 at [33].
[5] Selvachandran v Peterson Plastics Pty Ltd (1992) 62 IR 371 at 373.
[6] Ogbonna v CTI Logistics Ltd (No.2) [2015] FCCA 2318.
