Does secretly recording a workplace argument hold up in court?

The trend of discreetly recording exit interviews, meetings, and workplace confrontations continues to grow throughout Australia, but does it hold up as evidence in court?

Although the premise of secretly recording a conversation with someone has always been viewed as morally bankrupt, we are seeing it become more prevalent in the workplace, with employees hoping that it will serve as a trump card.

As previously reported by HR Leader, Michael Byrnes, a partner in employment law at Swaab, referred to the act of secretly recording workplace conversations as a “practice of playing amateur detective”.

According to McInnes Wilson Lawyers employment and industrial relations specialist Ryan Murphy, it is a practice that continues to persist throughout workplace disputes in the courts.

“We are noticing that our employer clients are increasingly seeing their employees take covert or unauthorised recordings in performance and conduct discussions, given it is as easy as an employee opening the ‘voice memo’ app on their smartphone, or calling themselves and leaving a message,” he said.

Despite the increase, there are parameters in each state across Australia that regulate whether recordings are obtained with or without consent.

“Across Australia, there is a web of surveillance laws which increase the complexity as to whether a recording has been obtained lawfully or unlawfully. In New South Wales, it is unlawful to use a listening device’ such as a smartphone to record a private conversation that an individual is party to, unless an exception applies,” said Murphy.

“One exception that employees will try to rely on is that the recording was reasonably necessary to protect their lawful interest.”

As an example, Murphy touched on the recent Fair Work Commission (FWC) decision of Lipari v Transit Systems West Services Pty Ltd, which involved the admissibility of covert recordings in an unfair dismissal claim.

“In Lipari, the employee had recorded two union meetings to which he was a party, without consent. This included using his mobile phone to capture a heated exchange in the break room. The commission considered whether these recordings could be used as evidence in his unfair dismissal proceedings.

“The commission is not bound by the rules of evidence and has a broad discretion to inform itself in relation to any matter before it,” he said.

“As such, even if the recordings were obtained in breach of surveillance laws, the commission can allow a recording that was made unlawfully if it decides the value of the recording as evidence in the proceedings matters more than how it was recorded.

“In this case, due to a dispute about what was said, the commission decided to allow the recordings to form part of the evidence.

“It also noted that while it was not making any finding as to the lawfulness of the recording, in its view, the conversation was not ‘private’, given that the break room door remained open and individuals were entering and exiting throughout the discussion.

“This could mean that the covert recording was not unlawfully taken in the first place.”

Although the commission found that the covert recording was not unlawfully obtained, it was reiterated that the action of secretly recording workplace conversations was “inappropriate”.

“While the recordings were allowed as part of evidence in this case, the commission reiterated its general view that surreptitious recording of conversations in the workplace, irrespective of whether it constitutes an offence, is usually inappropriate and is conducted to be deprecated,” said Murphy.

“Indeed, the commission has previously found that the making of covert recordings in the workplace by employees can damage the relationship of trust and confidence, and therefore be a valid reason for dismissal (see Chandlere v Bed Bath N’Table [2020] FWC 3706.)”

The Lipari case muddies the water on what many would deem as an immoral practice, unless used during instances of self-protection, as Murphy previously alluded to. For employers, it’s a wake-up call to remain vigilant about the fact that the majority of their employees will always have a recording device on them.

“Employers should review their workplace surveillance and mobile device policies, and ensure these policies effectively deal with covert recordings of meetings, whether virtual or in person. Then when it comes time to consider what to do with an employee who has taken a covert recording, they should seek legal advice,” said Murphy.