What to do about secret recordings at work

Although it’s lawful for an employee to secretly record conversations at work, doing so may provide a valid reason for disciplinary action or dismissal, writes Gordon Williams

Do you have a policy against employees secretly recording conversations at work? If not, I recommend you consider implementing one. It may surprise you to know that in most states in Australia, it can be lawful for employees to secretly record conversations at work. And there’s plenty of evidence they’re doing it. With recording functions standard on most smartphones, it’s easy for employees to do this covertly. However, even though the secret recording may be lawful, it may provide a valid reason for disciplinary action or even dismissal.

What does the law say?
In most Australian states, it is lawful for an employee to secretly record a conversation they are a party to if they consider the recording is reasonably necessary to protect their “lawful interests”. Typically, employees will argue their “lawful interests” include protection against: bullying, harassment or discrimination; an unfair performance management process; unlawful adverse action, or work, health and safety risks.

If it’s lawful, is it okay?
Even though secret recordings can be lawful, it seems that the Fair Work Commission (FWC) takes a dim view of employees doing so – with at least two decisions supporting the view that secret recordings can provide a valid reason for dismissal.

The first decision is Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013] FWC 4513, where Commissioner Cloghan rejected Schwenke’s unfair dismissal claim – finding that his secret recording of conversations with management (along with Silcar’s legitimate performance concerns) were valid reasons for his dismissal. In his decision, Commissioner Cloghan noted that “secretly recorded discussions are objectionable because one party is being deceptive and purposefully misleading the other party” and concluded that he was “satisfied that the secret recording of Schwenke’s performance discussion was contrary to his duty of good faith or fidelity … and undermined the mutual trust and confidence required in the employment relationship”.

Importantly, though, Commissioner Cloghan also recognised that secret recordings may be excusable in some circumstances, for example, “one-on-one actions in relation to discrimination, harassment or bullying”. However, he went on to note that “the gravity and cause would have to be significant to override the general requirement of dealing honestly and openly with the employer and work colleagues” – particularly given the risks of provocation or entrapment.

The second decision is Thomas v Newland Food Company Pty Ltd [2013] FWC 8220, in which Deputy President Sams awarded Thomas 26 weeks’ wages (less notice already paid) as compensation for his unfair dismissal – but refused to reinstate him.

Importantly, Thomas had secretly recorded conversations with management. Although this wasn’t relied on as a reason for his dismissal, Deputy President Sams decided not to reinstate Thomas because of it, saying that: “There could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with management. Although there may be sound reasons why an employee (or an employer for that matter) believes it is necessary to secretly tape workplace conversations, I consider such an act to be well outside the normal working environment and contrary to the well understood necessity for trust and fidelity in the relationship between employee and employer.”

Is it necessary to have a policy?
Notwithstanding the forthright views expressed in these cases – and the findings against the employees – each case will turn on its own facts. In my view, though, an employer’s position will be significantly improved if it has a clear policy that prohibits secret recordings. At the very least, appropriate wording should be included in other relevant policies – such as performance management, harassment and bullying.

And one final thought. Maybe you should assume those difficult conversations are being recorded and then take extra care that what you say, and how you say it, is appropriate.

4 key points: secret recordings at work

  • It’s generally lawful for employees to secretly record their conversations to protect their “lawful interests”.
  • However, secret recordings may provide a valid reason for disciplinary action or dismissal.
  • Having a policy against secret recordings will strengthen your legal position.
  • Be aware of the possibility of secret recordings, and make sure that what you say, and how you say it, is appropriate.