Is that sneaky recording made by your employee admissible?

Key Points

• Covert recordings will rarely be admissible if unlawfully obtained.

• However, there are circumstances where they will be admitted into evidence so employers need to be prepared for this possibility.

• Sound policies, clear instructions and some flexibility in relation to when meetings can and can’t be recorded will be your best protection.

Consider this scenario: you have disciplined an employee regarding misconduct and ultimately a decision is made to terminate the employee’s employment. At the hearing of the employee’s unfair dismissal claim the employee seeks to tender a recording of the disciplinary meeting taken without your knowledge or consent. You are pretty sure you did everything by the book but do you really want the full recording played? You can avoid this scenario from arising by following a few simple tips.

When will a secret recording be admissible?

As a general proposition any recording made of a private conversation without the consent of those party to it has the potential to be a breach of relevant surveillance or listening device legislation.  There are however, exceptions. In New South Wales for instance, a secret recording is not unlawfully obtained if making the recording was “reasonably necessary” for the purpose of protecting the “lawful interests” of the person making the recording.

It is unlikely to be considered “reasonably necessary” to secretly record a meeting between an employee and employer if an independent witness is present and/or the employee has been offered, but refused, the opportunity to have a support person present.

If a secret recording is determined to have been made unlawfully a Court may still admit the evidence if it considers the desirability of admitting the recording outweighs the undesirability of admitting it.

This is a high bar to overcome as was demonstrated in the matter of Ferry vs GHS.  In that matter the Fair Work Commission expressed a clear view that the act of secretly recording conversations with employers is one that Courts take a dim view of, commenting that it is:

“an act which strikes at the heart of the employment relationship shattering the trust and confidence necessary to maintain that relationship, an extreme impropriety, sneakiness that is abhorrent to ordinary persons, behaviour that is deceptive and purposefully misleading and finally as an action that displays an intention to entrap the employer.”

Factors that a Court will consider in determining whether to admit such evidence include:

• The probative value of the evidence
• Whether it goes to a central or contested matter in the proceeding
• The gravity of the impropriety or contravention in obtaining the recording
• The subject matter of the proceeding

For example, in Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) the Federal Circuit Court admitted into evidence a mobile phone recording taken of by the worker of his termination meeting. The worker alleged that undue pressure had been placed upon him during this meeting and the Court held that the recording would assist in determining that issue. The worker also alleged that he had made the recording inadvertently so any impropriety was at the lower end of the range. Ultimately the employer did not object to its admission presumably because it demonstrated that undue pressure was not exerted upon the worker in the meeting.

If an employee requests to record a meeting then that request will need to be considered in the context of the meeting, who else is present and what effect recording the meeting is likely to have on the free exchange of information during the meeting.

There will be circumstances where an employer wishes to record a meeting, particularly during an investigation into a grievance complaint where a lengthy statement is being taken and it is more time efficient and accurate for the meeting to be recorded. Consent should always be obtained in these circumstances and if refused alternative measures put in place to record what is said. An employer should NEVER covertly record a meeting with an employee.

Lessons for employers

 To prepare for these scenarios it is recommended that employers:

• Consider the position they wish to take on audio and video recordings in the workplace, particularly of performance and disciplinary meetings. It may be that a degree of flexibility is appropriate;

• Ensure their policies clearly state that position, any protocols for the use of recording devices (if permitted) and the consequences if a recording is made contrary to the policy (for instance warning, suspension with out pay, termination);

• If recordings are prohibited ensure that before any disciplinary or performance discussion those in attendance are asked to confirm no recording devices are being used;

• Consider having an independent witness present for all disciplinary or performance meetings;

• Always offer an employee the opportunity to have a support person present if a difficult conversation is envisaged.