Surveillance and Secret Recordings

With the rise in use of smartphones and other technology, the Fair Work Commission (FWC) and the courts are increasingly being called upon to consider surveillance and secret recordings in the workplace.

Privacy laws do not prohibit employers using surveillance to monitor employees in the workplace, as long as such surveillance is done with the consent of the employees and is not used to record private activities.

When it comes to employees recording co-workers, customers or managers in the workplace, the legal position is slightly more complicated.  Each State has its own piece of legislation governing the lawfulness of covert recordings.  In Queensland, the Northern Territory, Victoria and South Australia, it is lawful for an employee to secretly record a conversation they are a party to.  In other states, it is unlawful for an employee to covertly record a conversation without the permission of other parties.

In the case of Haslam v Fazche Pty Ltd T/A Integrity New Homes [2013] FWC 5593, the FWC examined the issue of whether an employee can rely on recordings he/she has made to further their claim.  Ms Haslam sought permission to bring forward evidence in the form of secret recordings made of managers without their knowledge.  The Commission determined that because the recordings were made without the knowledge of the other parties to the conversations, they were potentially made in contravention of the applicable legislation and the recording should therefore not be available for admission into evidence.

Similarly, in Thomas v Newland Food Company [2013] FWC 8220 an employee covertly recorded meetings with his manager.  The FWC stated that covert recordings by an employee of management would shatter any chance of re-establishing the trust and confidence required in an employment relationship.

In Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013] FWC 4513 the FWC rejected a claim for unfair dismissal on the ground that an employee’s covert recording of management was a valid reason for the dismissal due to its deceptive and misleading nature.

These cases illustrate that whilst covert recordings may be lawful, the nature of the employment relationship means the Commission will often take a dim view of such secret recordings and may not admit the recordings into evidence.  Both employers and employees should be aware of the consequences that may result from making a covert recording.

Author:  Georgia Starky, Q Workplace Solutions