Secret Recordings in the Workplace
Secret recordings may seem like an easy way to safeguard your rights during a disciplinary meeting or a conversation with your boss. However, they come with significant risks that often outweigh any possible benefits.
Secret recording of telephone communications
Federal legislation imposes a broad prohibition of any recording of telephone conversations across Australia. This makes the recording of telephone conversations unlawful and potentially subject to severe penalties. It is likely that this prohibition extends to smart phone applications that record telephone calls as they occur.
Secret recording of in-person meetings
Recording non-telephone conversations, such as during an in-person disciplinary meeting, may be lawful depending on what state you are in.
In Victoria, employees are covered by the Surveillance Devices Act 1999 (Vic) which permits the use of a recording device to record “private conversations” to which they are a party. The consent of the other parties to the conversation is not required. However, in general, knowingly publishing or communicating a secretly recorded conversation is prohibited.
This does not apply where an employee secretly records a conversation to which the employee is party and is reasonably necessary for the protection of their lawful interests.
Therefore, it is lawful in Victoria for an employee to both secretly record a non-telephone conversation to which they are a party to and to communicate this recording if to do so is reasonably necessary for the protection of the lawful interests.
Secret recordings and unfair dismissal
Despite the fact that secretly recording disciplinary meetings is often lawful in Victoria, in practice these recordings often do more harm than good for employees.
The Fair Work Commission has consistently viewed the making of these secret recordings as misconduct and a valid reason for dismissal.
For example, last year in Chandler v Bed Bath N’ Table (2020) FWC 3706 Commissioner Lee found that:
“taking into account all of the circumstances, I am satisfied that the covert recording of the conversations with Ms. Faill and Ms. Dowlan is a valid reason for dismissal. It was not the reason relied on for the dismissal and could not have been as the employer was unaware at the time the recording had taken place until the filing of materials in this matter. Whilst the Applicant did not intend to harm the employer by making the recording, she could have achieved the same objective by advising that she was making the recording. I am not satisfied that the Applicant was genuinely fearful of Ms Faill. Covert recording of the conversations was inappropriate and damaging of a relationship of trust and confidence with the employer. This is a factor weighing against a finding that the dismissal was unfair.”
Therefore, making secret or covert recordings for a potential unfair dismissal claim is often counterproductive. Indeed, the very act of secretly recording your employer may lead to the valid termination of your employment. This valid reason can be used by your employer in an unfair dismissal claim even if it is only discovered after the termination has taken place.
As a result, whilst a secret recording may assist you to show what precise words were used in a disciplinary meeting, or the accurate sequence of events, it is often significantly outweighed by the fact it may create a valid reason for your dismissal.
In short, while secret recordings seem like an easy way to ensure your rights are protected, they may be considered to be unlawful or a valid reason for the termination of your employment. As a result, you should not make a secret recording without first seeking legal advice.
The best, and simplest way to safeguard your rights as an employee, is to make use of a support person in all disciplinary meetings. A support person should take detailed notes during any meeting. These notes, unlike a secret recording, cannot lead to significant penalties or the termination of your employment.