Jurisdiction - Australia
News
Australia – Are Your Employment Discussions Being Taped?

30 September, 2013

WHAT YOU NEED TO KNOW

 

  • Evidence about what was said in meetings and conversations is important in many investigations (such as into bullying claims), and in performance management and disciplinary contexts.
  • Recordings can be useful to resolve disputes about the tone and content of discussions. However, they can also be used as a “set up”.
  • Several recent cases have held that secret recordings made by an employee of meetings and conversations with their managers may be admissible into evidence in legal proceedings despite being improperly or unlawfully obtained.
  • Key (but not determinative) issues are whether the recording is of a “private conversation” and, if so, whether the recording was obtained in breach of the relevant listening and surveillance devices legislation. The rules vary between jurisdictions.
  • When a court or tribunal exercise its discretion to allow a secret recording into evidence, it exercises care in assessing the probative value of the recording.
  • Where an employee or employee representative asks to record a meeting and the employer knows about the recording, unless the employer overtly objects, the employer may have given implied consent to the recording under relevant legislation.
  • As a practical matter, it could be difficult for an employer to enforce a ban on recording workplace meetings. There is a risk that a ban could backfire and result in more secret recordings of meetings.
  • This Alert explains when a secret recording may be admissible in proceedings, and considers the steps an employer can take to manage this risk and to manage the use of recording devices in the workplace.
 

WHAT YOU NEED TO DO

 

  • Employers should review their position on use of recording devices in the workplace before the commencement of the Fair Work Commission’s anti-bullying jurisdiction on 1 January 2014.
  • Before adopting a knee jerk response to refuse any request to record a meeting, employers should consider the range of factors set out below.
  • Some employers may want to consider establishing a protocol for use of (or banning) recording devices in disciplinary and performance management meetings, and internal investigations. In this case, employers should carefully consider our comments below.
  • Managers conducting internal investigations should be trained in how to assess the probative value of any recording when determining whether or not an allegation is substantiated. This will involve managers applying the factors considered by the Commission in the exercise of its discretion to admit recordings into evidence.

 

In the smartphone era, employees are increasingly playing the role of detective by covertly recording disciplinary or performance management meetings and informal conversations with their managers and attempting to use the recordings as evidence in subsequent legal proceedings.

 

This Alert considers the implications for employers of several recent cases where the Fair Work Commission, the Federal Court and the Federal Circuit Court have each been asked to rule on the admissibility of secret audio recordings made by an employee in support of a claim against their employer.

 

Is A Secret Recording Admissible?

 

Whilst not determinative of the issue, the starting point when considering the admissibility of a secret recording is whether the recording:

 

  • is of a “private conversation” (as defined in the relevant legislation); and, if so
  • was obtained in breach of the relevant listening and surveillance devices legislation. This may provide a basis on which an employer can object to the admission into evidence of a secret recording.
 

At a federal level, if an employee secretly records a telephone conversation, it may contravene the Telecommunications (Interception and Access) Act 1979. This Act expressly prohibits the interception, without the knowledge of the person making the communication, of a communication passing over a telecommunications system.


Each State and Territory also has legislation governing the recording of conversations.
For example, in Victoria, the Surveillance Devices Act 1999 does not prevent a person from recording a private conversation to which they are a party. However, the legislation prohibits communication or publication of the recording unless an exception applies.


By contrast, in Western Australia, the Surveillance Devices Act 1998 does prohibit recording a private conversation to which the person is a party, unless an exception applies. This legislation also prohibits subsequent communication or publication of the private conversation unless an exception applies.


Each jurisdiction has different statutory exceptions. These include:

 

  • where the recording is obtained with the express or implied consent of the other parties to the conversation;
  • where the person discloses the recording in the course of legal or disciplinary proceedings; and
  • where the publication or communication is for the protection of a person’s lawful interests.
 

However, these exceptions will usually only be available if the party seeking to admit the evidence can satisfy the court or tribunal that disclosing the recording is not more than is reasonably necessary, either in the public interest, or for the protection of the person’s lawful interests.


To Admit Or Not Admit?


Even if the recording has been improperly obtained in breach of the relevant State, Territory or federal legislation, the Fair Work Commission, the Federal Court and the Federal Circuit Court each have a discretion to allow admission of the recording into evidence.


The Commission’s discretion is particularly broad. Unlike the federal and State courts, the Commission is not bound by the rules of evidence and procedure in relation to a matter before it and can inform itself as it sees fit.


In the recent case of Haslam v Fazche Pty Ltd T/A Integrity New Homes [2013] FWC 5593, an employee sought to rely on audio recordings made of two separate meetings with two managers of his employer in support of an unfair dismissal application. The employer objected on the basis that the recordings were made without the knowledge of the two managers.


Commissioner Wilson was satisfied that because the recordings were obtained without the consent of the other parties to the conversation, they were “potentially” made in contravention of the Listening and Surveillance Devices Act 1972 (SA). Having reached this preliminary view, Commissioner Wilson went on to consider the desirability of admitting evidence which appeared to have been improperly obtained.


Commissioner Wilson outlined the proper approach to be taken by the Commission in the exercise of its discretion. In the Commissioner’s view, the provisions of the Evidence Act 1995 (Cth) need to be considered in the context of the Fair Work Act 2009. This requires the Commission to start from a position that illegally or improperly obtained evidence is not to be admitted, with the onus on the party seeking admission to satisfy the Commission that “the desirability of admitting the evidence outweighs the undesirability of admitting it”.

 

Tipping The Balance – Factors Relevant To The Exercise Of The Discretion

 

The Commission will consider a number of factors when exercising its discretion to admit a secret audio recording. These factors are set out in the Evidence Act 1995 and include:

 

  • the probative value of the evidence;
  • whether the evidence goes to central and contested matters in the proceeding;
  • the gravity of the impropriety or contravention by the party in obtaining the recording; and
  • the subject matter of the proceeding.
 

In Haslam, the employee sought to admit the recordings to challenge the evidence in the employer’s witness statements. In declining to admit the evidence, the Commissioner considered it relevant that the employee would have an opportunity to put her contentions to the employer’s witnesses in the ordinary course of cross-examination.


In the recent Federal Circuit Court case of Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 3) [2013] FCCA 694, the employee alleged various contraventions of the Fair Work Act by his former employer following his dismissal for misconduct.


The employee alleged, amongst other things, that his employer had exerted undue influence or pressure during the course of the disciplinary meeting at which he was dismissed because he was told he needed to sign a termination letter. In support of this claim, the employee sought to admit an audio recording which had been made without the knowledge or consent of his manager. The recording was made inadvertently because at the relevant time, the employee was recording conversations which he alleged were taking place in the workplace.


Judge Lucev deemed the inadvertent recording admissible under the Surveillance Devices Act 1998 (WA) because it was no more than reasonably necessary for the protection of the employee’s interests. His Honour’s reasons in support of the decision were that:

 

  • the recording was the best evidence of what was said at the disciplinary meeting and the tone in which it was said;
  • the recording was likely to assist significantly with the question of whether or not undue influence or pressure was exerted by the employer; and
  • the gravity of the employee’s impropriety was low given the recording was obtained inadvertently, rather than deliberately or recklessly.
 

Probative Value Of A Secret Recording

 

The Commission has cautioned that if a secret recording is admitted into evidence, care must be exercised when assessing its probative value.


In Kharb v Eastfield Pty Ltd T/A BP Duaringa [2013] FWC 6403, Senior Deputy President Richards held that where one party to a conversation is aware that a conversation is being taped and another party is not, “issues may arise as to how the knowing party constructs the conversation and manufactures his/her responses”.


In Kharb, the employee sought to admit a secret recording in an unfair dismissal application. Senior Deputy President Richards admitted the recording into evidence as it wasn’t contested by the employer. Ultimately, the recording was found to be unhelpful to the employee’s case. The recording showed that the employee was not a credible witness and the dismissal was not harsh, unjust or unreasonable. Senior Deputy President Richards observed that the mere fact that the employee brought a recording device to the interview in anticipation of the employer’s reaction suggested that the employee suspected his employment was in jeopardy.

 

When The Tables Are Turned – Secret Recordings By Employers

 

Employers may also be faced with the situation where a manager has made a secret recording of a conversation with an employee or union representative.


This type of evidence may reflect poorly on an employer, lead to distrust, suspicion and general disharmony amongst its workforce. In a legal proceeding a secret recording may reflect poorly on the credibility of the employer’s witnesses.


For example, in the recent “bra-gate” incident the site head contractor Tedra Australia Pty Ltd engaged IR consultant Grace Collier in response to a protest at the City West Water site in Werribee, Victoria. The protest involved the AMWU and one of its organisers.

 

The Director of the Fair Work Building Inspectorate applied to the Federal Court for an interlocutory injunction against the AMWU and the organiser seeking orders restraining them from participating in the protest and from preventing access to the site (Director of the Fair Work Building Inspectorate v AMWU and Tony Mavromatis [2013] FCA 82).


In her affidavit, Ms Collier disclosed that she had covertly recorded her face-to-face conversations with the AMWU organiser by placing a recording device in her handbag and bra. Ms Collier also recorded a telephone conversation which she had initiated with the AMWU organiser.


Justice Marshall granted the interlocutory injunction but expressed “serious concerns” about Ms Collier’s evidence. His Honour found it would be “unsafe” to rely on the material. He questioned the probative value of the evidence, noting that the transcriptions were inadequate because they contained multiple hand written amendments and statements had been incorrectly attributed to parties.

 

How Should Employers Manage Recording Devices In The Workplace?

 

The need for employers to consider their position on recording devices in the workplace may take on greater importance with the commencement of the Commission’s anti-bullying jurisdiction on 1 January 2014.


Employers may then be dealing with secret recordings by employees of meetings which might be used:

 

  • to prove a lack of procedural fairness in subsequent unfair dismissal proceedings; or
  • as evidence in an internal investigation into allegations of bullying by a manager or fellow employee. In this case, employers will need to assess the probative value of the recording in determining whether or not the allegation is substantiated. This will involve managers applying the factors considered by the Commission in the exercise of its discretion to admit recordings into evidence as discussed above. Managers performing this task should be trained and experienced in assessing evidence.
 

Employers need to apply the same considerations in determining their position on the use of recording devices by the employee for his or her personal benefit, or by staff for the employer’s benefit.

 

What If An Employee Asks To Record A Meeting?

 

Where an employee asks to record a meeting, the employer has knowledge of the recording. If the employer does not overtly object, the employer may have given implied consent to the recording under relevant legislation. This means the recording may be lawful. The employer may not be able to contest the admissibility of the recording in a later proceeding on the basis that it was unlawfully obtained.


Before adopting a knee jerk response to refuse any request (by either an employee or a manager) to record a meeting, employers should consider:

 

  • What is the purpose of the meeting?
  • Who is conducting the meeting and how experienced is that person in this role?
  • Will the employee have a support person present?
  • Will the employer representative have a separate note taker present?
  • What are the possible consequences of the meeting for both parties?
  • What may happen if the request is refused – is there a risk the employee will refuse to participate in any meeting so the entire investigation, disciplinary or performance process may become document-based, be delayed and the employer loses the opportunity for the direct contact and observation that occurs during face to face meetings?
  • What method of recording is proposed?
  • How secure is the proposed method of recording – will it prevent the recording being tampered with?
  • Does the employer have facilities available to quickly prepare a complete and accurate transcript of the recording following the meeting?
  • Would a recording and/or transcript of the meeting assist the employer?

 

Can An Employer Ban Recordings Of Workplace Discussions?

 

Some employers may want to consider establishing a protocol for use of (or banning) recording devices in disciplinary and performance management meetings, and internal investigations. The introduction of a protocol could be a purely pragmatic step, or a specific action to address trust in the workplace.


Employers who are considering the introduction of protocols dealing with recording workplace discussions should ensure that the protocol:

 

  • allows sufficient discretion to take a case by case approach which best suits the individual employee, and the circumstances involved;
  • complies with all relevant legislation;
  • clearly sets out any ban or restrictions; and
  • is communicated to all employees, reinforced to each employee before any formal meeting or interview, and that the employee is asked to confirm that he or she is not recording the exchange.
 

As a practical matter, it could be difficult for an employer to enforce a ban on recording workplace meetings. There is a risk that a ban could backfire and result in more secret recordings of meetings.

 

MAKING THE CASE: Insights From Geoff Giudice

 

A recording can be very good evidence of what was said at a meeting and how it was said. There may be advantages for employers in having an objective record of relevant conversations, addresses, etc. for the purposes of Commission proceedings of various kinds.


When the Commission is considering whether to admit a recording, some of the potential issues are whether the recording was lawful, its probative value, whether relevant people knew that they were being recorded, the process for authentication of the recording, the audio quality and the possibility that one or other of the participants has been unfairly induced into making admissions. And even if parties consent to the recording being admitted, the Commission might still decide not to admit it. If, for example, the recording was unlawful or contained embarrassing or scandalous material about third parties, the Commission might consider that it would be contrary to the public interest to have the recording go into evidence. But the prevalence of recording technology in phones and tablets and the widespread recording of other material these days suggest that clandestine recording of employment discussions and other workplace exchanges is likely to increase rather than diminish.


The development of a protocol or policy involves a number of value judgments and a range of potential cases should be taken into account. A policy against secret recording has some appeal but, if unqualified, might give rise to difficult issues. Where verbal bullying is secretly recorded, for example, an employer will not wish to cover up the bullying or be seen to support the perpetrator, but equally would not wish to waive compliance with its policy.

 

Ashurst Logo

 

For further information, please contact:

 

Marie-Claire Foley, Partner, Ashurst
marie-claire.foley@ashurst.com


Julie Mills, Ashurst
julie.mills@ashurst.com


Justine Giuliani, Ashurst
justine.giuliani@ashurst.com

 

Geoffrey Giudice, Ashurst
geoffrey.giudice@ashurst.com

 

Ashurst Labour & Employment Practice Profile in Australia

 

Homegrown Labour & Employment Law Firms in Australia

 

Comments are closed.