Secret recordings of conversations at work are becoming increasingly common. As mobile phones become ubiquitous, the ability to record a conversation in the workplace becomes as easy as a button discreetly pushed in a pocket or handbag.
In the context of workplace conflict, where they can be presented by employees as supporting evidence for an allegation of bad behaviour, managers need to know how to deal appropriately with them.
Australian laws on recording conversations
In Australia, the laws in relation to recording private conversations or activities vary from state to state. In Western Australia for example, it is not legal to record a conversation without consent, even if you are a participant in the conversation.
In Victoria, the principles around recording conversations are governed by the Surveillance Devices Act 1999 (Vic) (‘the Act’). The Act provides (with exceptions for law enforcement) that it is an offence to record a conversation to which you are not a party. (see s.6)
The Act does not provide that it is an offence to record a private conversation to which you are a party (that is, if you are a person who speaks words or is spoken to in the course of the conversation which is recorded -see definition of in s.3).
However, it is an offence, to publish a record or a report of the private conversation or activity unless certain circumstances are met. (see s. 11) Those circumstances include if it is in the public interest or for the protection of the lawful interests of the person making the publication.
In general, the Fair Work Commission (FWC) has not looked at all favourably on employees recording conversations without the consent of the other party. This has been seen as potentially a breach of the duty of trust and mutual confidence between employer and employee. This may change now the High Court (in CBA v Barker) has found that there is no such duty at common law.
Wayne Schwenke v Silcar Pty Ltd t/as Silcar Energy Solutions [2013] FWC 4513
Commissioner Cloghan considered circumstances where an employee made an unfair dismissal claim against a dismissal which was partly because of the employee secretly recorded a meeting. The Commissioner noted that secretly recorded discussions are objectionable because one party is being deceptive and purposely misleading the other party.
In particular, the Commission noted:
‘I’m satisfied that the secret recording of Mr Schwenke’s performance discussion was contrary to his duty of good faith or fidelity to the employer, and undermined the mutual trust and confidence required in the employment relationship. There may be some circumstances, such as one-on-one actions in relation to discrimination, harassment and bullying that secretly recording a conversation is permissible – 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.’
Managing recordings of conversations at work
In terms of how to manage recording of conversations in the workplace, we recomment that employers:
1. Consider whether to expressly prohibit recording conversations in the workplace in your organisations’ policy or procedures and be clear on any exemptions to this policy.
2. Consider circumstances where it may be appropriate to record conversations. For example, it may be appropriate to record conversations in an investigation instead of taking notes or to record a meeting, so that minutes can be produced later.
3. Have a conversation with your employees about your policy on making recordings of conversations at work.
4. In meetings, consider asking people to put their phones on the table to show that they are not recording the proceedings.
5. If you are starting a private conversation with an employee, consider stating that you do not consent to the conversation being recorded.
6. If an employee approaches you with a secretly recorded conversation, the best way to risk manage the situation is to not accept possession of the audio recording, and instead seek legal advice as to whether you can potentially rely on it as relevant evidence.
About Jodie Fox
Jodie Fox brings to Worklogic a wealth of experience gained working with clients from a diverse range of industries. Previously working as an employment lawyer at a top-tier law firm for almost 10 years, Jodie worked closely with a host of large and small clients.
Worklogic offers a range of services to help you develop effective employment policies and effective code of conduct and training programs for your organisation. If you need help in this area, contact Jodie for an obligation free consultation via email or call (03) 9981 6558.
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