Employees covertly recording conversations at work in Australia – is it legal?
Given the ease with which recordings can be facilitated by mobile phones, recent cases continue to expose the difficulties employers face as a result of recordings of workplace conversations by employees, without the consent of those involved.
The usual context is that such recordings are taken by employees who are disgruntled with some feature of their work or workplace or under some kind of disciplinary cloud. Frequently, the recordings do not surface until well after the recording date. These circumstances, both individually and combined, can add to the complexity of the issues, both practically and legally.
There are three main concerns for employers that arise from covert recording of conversations at work:
Whether or not it is legal to record a conversation in Australia without the knowledge of all participants, and in what circumstances, will depend upon the state or territory where the recording takes place.
Every state and territory has its own unique laws in relation to recording face-to-face conversations.
For example, in Queensland under the Invasion of Privacy Act 1971 (Qld), it is generally permissible for a person to record a ‘private’ conversation that they are a party to without the consent of the other participants. There are no legal restrictions on conversations which are not ‘private’. 1 Although, such a recording can only then be communicated or published under certain circumstances, including: with consent; in the course of legal proceedings; if it is in the public interest; or if it is made to a person who is believed by the person making the communication or publication to have such an interest in the private conversation as to make it reasonable in the circumstances.
However, in Western Australia under the Surveillance Devices Act 1998 (WA), it is only permissible to record private conversations with consent, unless it is reasonably necessary to protect the lawful interests of the person recording.
It is worth noting that the Telecommunications (Interception and Access) Act 1979 (Cth) makes it a federal offence to intercept a communication passing over the telecommunications system, with or without the knowledge of those involved in that communication. This includes recording telephone calls or video meetings by direct connection to the telecommunications system. The federal law prevails over any inconsistent state law. So in Queensland, for example, it is unlawful to record a telephone call by direct connection to the telecommunications system even if the person recording is a party to the conversation.
However, whether covertly recording a conversation is legal is not usually the main issue in employment matters – there are many acts by employees that are legal, but nonetheless, provide a valid reason for dismissal (e.g. refusing to comply with reasonable directions of management).2
Essentially, yes. The Fair Work Commission has repeatedly made comments to the effect that secretly recording conversations at work, ‘strikes at the heart of the employment relationship’ and undermines ‘the necessity of trust and confidence in the employment relationship’.3 The cases have referred to the general community expectation in both business and social behaviour that participants will not be subjected to covert recording of a conversation, saying that such conduct is an ‘extreme impropriety’.4 A covert recording at work can be serious misconduct and may therefore be a valid reason for dismissal.
Two recent unfair dismissal cases have confirmed the Fair Work Commission’s view on the matter.
In Zhang v Royal Automobile Association of South Australia Incorporated t/a RAA5 the Fair Work Commission found that a covert recording by Mr Zhang of a meeting between him and his managers “fatally damaged” the employment relationship and was a valid reason for dismissal (amongst other reasons). The Commissioner did not accept the recording into evidence despite Mr Zhang’s submissions.
In Chandler v Bed Bath N’ Table6 the Commission again confirmed that a covert recording may be a valid reason for dismissal. In that case, the unfair dismissal claim was successful subject to later determination of appropriate compensation. Interestingly, Commissioner Lee accepted the recording into evidence and it substantially assisted Ms Chandler’s case, including evidencing some incorrect representations of the Fair Work Act 2009 (Cth) made by the employer. The Fair Work Commission found that Ms Chandler’s dismissal was unfair and the reasons originally relied upon by the employer were not valid (in part due to the recording evidence).
However, Ms Chandler’s making of the recording, only discovered after the dismissal and during the proceedings, was found itself to be a valid reason for dismissal and was successfully relied upon by the employer as a justification for avoiding a reinstatement order due to a loss of trust and confidence between the parties. That is, if the employer had discovered the recording during the employment and followed a fair process, the employee could, based on her making of the recording, have been validly dismissed.
Prevention is better than a cure, however. Despite the clear view of the Fair Work Commission, it is also clear that when under pressure (i.e. because of a performance or misconduct meeting) most employees do not consider the potential implications for their employment of their covertly recording workplace or work-related conversations. It is therefore worthwhile being upfront about managing the issue – for example, by:
A further possibility for employers in appropriate cases is to take charge of the ‘recording agenda’ and, with notice to meeting participants, themselves to record key meetings on the basis that a copy of the recording will be made available to all participants.
There may be times where a covert recording assists an employer to determine workplace conduct issues. The approach by the Fair Work Commission in Zhang and Chandler was different in that the recording was admitted into evidence in Chandler but not Zhang.
What should an employer do? Should a covertly made recording be considered, as part of the available evidence, by an employer in workplace investigations or disciplinary matters?
This is generally a discretionary decision for the employer, but one which needs a clear decision based upon well documented reasoning to ensure it is defensible. The best approach is to use the same test that courts and tribunals use in deciding to admit (or not) such evidence - this will place the employer in good stead should the matter end up in formal litigation.
Firstly, it needs to be determined whether the making of the recording was actually unlawful in the particular state/territory (jurisdiction). While this is not in itself determinative (because, as mentioned above, even the lawful making of a covert recording can itself amount to misconduct sufficient to justify dismissal or some lesser form of discipline), it is one factor that needs to be weighed.
The second consideration is whether the desirability of using the recording as evidence outweighs the undesirability of doing so and appearing to endorse how the evidence was obtained. Even in cases where a covert recording was not made unlawfully, employers should nevertheless take into account the ‘extreme impropriety’ of that kind of workplace conduct.
Faced with this same dilemma when considering the admissibility of such evidence in formal proceedings, courts and tribunals weigh a number of factors including:
There are a number of employment related cases which directly address the admissibility of unlawfully obtained recordings. A good example of this weighing of different considerations was in Ogbonna v CTI Logistics Ltd (No.2)8, an unlawful discrimination case, where Mr Ogbonna sought unsuccessfully to have admitted into evidence an unlawfully recorded conversation with his employer. The court considered the following:
The court said, “the desirability of admitting it [the recording] did not outweigh the undesirability of admitting it having regard to the way in which it was obtained, that is deliberately, and the fact that the evidence was not of probative value, and in any event evidence of the meeting was obtainable, without difficulty, without admitting into evidence, evidence obtained in contravention of section 5(1) of the Surveillance Devices Act 1998 (WA).”
For further advice and practical assistance in managing employee misconduct, workplace investigations and covert recordings of workplace conversations, please contact our Workplace and Employment team.
1 The Queensland Law Reform Commission is currently reviewing workplace surveillance laws, with an expected report date of mid-2021.
2 Thomas v Newland Food Company Pty Ltd  FWC 8220 at .
3 Thomas v Newland Food Company Pty Ltd  FWC 8220 at .
4 Yan Jie (Richard) Zhang v Royal Automobile Association of South Australia Incorporated T/A RAA  FWC 8090 at .
5  FWC 8090.
6  FWC 3706.
7 See eg, section 138 Evidence Act 1995 (Cth).
8  FCCA 2318.