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The fact technology has made it easier to record employees, with a discreetly placed smartphone replacing the hidden tape recorder of the past, does not make it a good idea, writes Michael Byrnes.
Employees in dispute with colleagues or management sometimes adopt the strategy of secretly recording them, convinced they will be able to gather evidence that will ultimately vindicate their position and discredit their workplace opponents. This practice of playing amateur detective persists even though the Fair Work Commission (FWC) has expressed its emphatic disapproval of employees making such secret recordings in a series of cases in recent years.
In Gadzikwa v Australian Government Department of Human Services [2018] FWC 1878 (Gadzikwa), deputy president Alan Colman set out the rationale for this view:
“The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.”
This criticism of secret recording was affirmed by the FWC in the recent unfair dismissal decision, Karen Altham-Wooding v PKDKAdventures Pty Ltd [2024] FWC 2753.
In this case, deputy president Tony Saunders initially considered the admissibility of a secret recording made by the applicant during her employment. The employer was not aware of the recording until the applicant sought to rely upon it as part of her evidence in support of the unfair dismissal application.
In rejecting the tender of the secret recording, deputy president Saunders noted (at paragraph 42):
“The material filed by Ms Altham-Wooding in support of her application for unfair dismissal included a recording she made of her attendance in the office at the Park on 28 May 2024. Ms Altham-Wooding secretly made that recording on her mobile phone. PKDK did not consent to the recording and did not become aware of it until Ms Altham-Wooding filed her material in chief in the commission in accordance with my directions. Because the recording was made secretly, I rejected the request by Ms Altham-Wooding to tender the recording at the hearing.”
The consequences for the applicant in seeking to tender and rely upon the secret recording went well beyond its exclusion from evidence. It was held that the secret recording of conversations in the workplace by the applicant constituted a valid reason for the termination of her employment.
In this regard, deputy president Saunders observed (in paragraph 43, with footnotes omitted):
“I am satisfied that Ms Altham-Wooding’s secret recording of her attendance in the office at the Park on 28 May 2024 was a valid reason for her dismissal. That PKDK did not become aware of the secret recording by Ms Altham-Wooding until she filed her evidence in the proceedings before the commission does not prevent the recording being considered as a potentially valid reason for Ms Altham-Wooding’s dismissal because it is a matter for the commission to determine, on the evidence before it, whether there was a valid reason for the dismissal. I consider that, unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction, such as s 7(1) of the Surveillance Devices Act 2007 (NSW), which prohibits a person from using a listening device to record a private conversation to which a person is a party.”
In reaching the view, deputy president Saunders cited Gadzikwa and also noted the decision of the full bench of the FWC in Schwenke v Silcar Pty Ltd [2013] FWCFB 9842, in which recording in secret by an employee was held to be contrary to the duty of good faith and fidelity owed to the employer and undermined the trust and confidence required in the employment relationship, constituting grounds for summary dismissal.
Applying these principles to the facts of this case, deputy president Saunders observed (in paragraph 45):
“I do not consider that Ms Altham-Wooding had any legitimate justification for secretly recording her attendance in the office at the Park on 28 May 2024. Ms Altham-Wooding had only been employed by PKDK for about a month at the time she made the secret recording. She was attending the office at the Park to speak to Ms Whittingham or Mr Kennedy about her employment. Mr Kennedy had, three days earlier, sent Ms Altham-Wooding a text message asking her to text him to set up a time for them to meet. Ms Altham-Wooding did not respond to that text message and instead just turned up at the office on 28 May 2024.”
Deputy president Saunders then delivered the fatal blow to the unfair dismissal application (in paragraph 46):
“I am satisfied that Ms Altham-Wooding’s conduct in secretly recording her attendance at the office in the Park was contrary to her duty of good faith and fidelity to her employer and undermined the trust and confidence required in the employment relationship. It provided PKDK with a sound, defensible and well-founded reason to terminate Ms Altham-Wooding’s employment.”
In summing up, deputy president Saunders observed (in paragraph 55):
“I consider that Ms Altham-Wooding’s secret recording of her attendance in the office at the Park on 28 May 2024 destroyed the trust and confidence in her employment relationship with PKDK. This betrayal of trust outweighs the facts and circumstances which support Ms Altham-Wooding’s claim that she was unfairly dismissed.”
Conclusion
This decision again demonstrates that secret recording by employees is misconceived and counterproductive. The fact technology has made it easier to do, with a discreetly placed smartphone replacing the hidden tape recorder of the past, does not make it a good idea. It proved to be an own goal for the applicant in this case, providing the very basis upon which the unfair dismissal application was dismissed.
If an employee is concerned colleagues will misrepresent what is said in a meeting relating to their employment, they should either take notes during the meeting or, if that is not practical, make a file note of the discussion as soon as possible after its conclusion. Not only can secret recording breach surveillance devices legislation (such as the Surveillance Devices Act 2007 (NSW)), but it is also almost invariably a significant red flag employers can seize upon to successfully argue that continued employment is, or was, rendered untenable.
Michael Byrnes is a partner in employment law at Swaab.
