This recent Fair Work Commission (FWC) decision provides a clearly reasoned reminder that secretly recording a workplace conversation without justification, is highly inappropriate and can provide a valid reason for dismissal.
KEY TAKEAWAYS:
A secret workplace recording:
- is likely to be contrary to the duty of good faith and fidelity to the employer, and may undermine the trust and confidence required in an employment relationship
- may provide a “sound, defensible and well-founded reason” for termination, even when the employer was not aware of the recording until after the dismissal.
For investigators, this decision is a reminder to exercise caution before relying on a secret recording in a workplace investigation and to consider alternative ways to obtain relevant evidence.
Background
The applicant was a casual employee at a Holiday Park, in housekeeping and reception, from November 2022. The respondent employer took over management of the Park in April 2024.
The dismissal
Soon after the new management commenced, there was a period of reduced hours and a breakdown in communication with the applicant. Despite the applicant resigning from her employment on 26 July 2024, the Commission found the applicant was in fact dismissed on 22 July 2024 when her access to the rostering app was removed.
Secret recording
The applicant went to the Park office on 28 May 2024 and asked to speak with Park management. The applicant recorded this visit on her mobile phone. The employer was not aware of the recording until the applicant provided it as evidence to the Commission in support of her unfair dismissal application.
The decision
The Commission confirmed the test that a valid reason for termination must be assessed by reference to facts that existed at the time of the dismissal, even if they did not come to light until after the dismissal.1
It found:
- the employer had not consented to the audio recording, and there was no legitimate justification for the applicant to make the recording
- secret recordings, without justification, are highly inappropriate, regardless of whether the recording constitutes an offence in the relevant jurisdiction2
- the secret recording was contrary to the applicant’s duty of good faith and fidelity to her employer and undermined the trust and confidence required in the employment relationship
- the recording provided the employer with a sound, defensible and well-founded reason to terminate the employment.
Accordingly, the Commission found the secret recording was a valid reason for dismissal.
What does this mean for a workplace investigation?
Even when a secret recording is lawfully obtained (and this may vary from state to state), it is rare for a secret recording to be relied on in an investigation. The potential risk that the recording may not be admissible in any subsequent litigation, along with the risk of harm to workplace relationships and professional reputations, generally outweigh any potential benefits.
When presented with a secret recording by a participant, it is our usual approach not to accept the recording but to pause and assess whether the recording is likely to be relevant and, if so, whether there are alternative ways to obtain the evidence allegedly recorded.
In most cases, it is a better option to seek the evidence through other more transparent methods such as formal interviews, documented conversations, and consensual recordings. For example, rather than relying on a secret recording of a conversation, seek witness recollection or contemporaneous notes of the conversation.
Conclusion
This decision serves as an important reminder about the serious consequences of secret recordings. In this case, despite there being some evidence of poor communication by the employer with the employee, the secret recording outweighed other factors that might have supported an unfair dismissal finding.
1 [39] referring to Newton v Toll Transport Pty Ltd Pty Ltd [2021] FWCFB 3457 at [99]
2 Adopting the observations of Deputy President Colman in Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 at [83]
