21 Nov 2013
iSpy with my little eye something ending with misconduct
by Leigh Howard, Jim Simmonds
Employers need to review their policies and practices so that covert recording is appropriately managed.
In the age of smart phones, it's easier than ever before to record conversations. In any meeting at the workplace, it is now almost certain that at least one person has technology in their pocket that can record voice at the touch of a button.
It should come as no surprise that secretly taped conversations of meetings are increasingly surfacing in proceedings at the Fair Work Commission. So far, the Commission has taken a dim view of such conduct, finding that the secret recording of conversations can breach the employee’s duty of trust and confidence.
Is it lawful to secretly record a conversation on a smart phone?
The lawfulness of covert recording of conversations is governed by State legislation. Each State has enacted its own surveillance legislation which differs in some important respects. As a general rule of thumb, recording conversations is permissible provided that express or implied consent is obtained before the conversation takes place.
A failure to obtain express or implied consent can be a breach of the law which may result in criminal punishment. There are various defences – for example, some legislation allows secret recording where it is reasonably necessary to protect the legal interests of the recorder. Careful examination of the legislation of the State you operate within is required.
What is the Fair Work Commission’s view on covert recordings?
Lawfulness aside, it is clear from recent cases that the Commission views covert recording as an unacceptable practice in the workplace. In Thomas v Newland Food Company  FWC 8220, the employee secretly recorded a number of discussions he had with his operations manager, as well as the meeting in which he was dismissed. He also took photos of alleged food mishandling practices and allegedly told colleagues that he was going to report the employer to authorities.
Deputy President Sams found that the employee's dismissal was unfair (for other reasons), but nonetheless refused to order reinstatement because of his covert recording practices, sending a warning to iSpies:
“In my view, 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."
The Deputy President’s findings add to the views recently expressed by other members of the Commission that secret recordings are:
“quite properly described as sneaky [and] … abhorrent to ordinary persons dealing with each other in a proper fashion” (Senior Deputy President Drake in Lever v ANSTO  AIRC 784);
“deceptive and purposely misleading” (Commissioner Cloghan in Schwenke v Silcar  FWC 4513); and
“seriously wrong and inexcusable … [and] a valid reason for dismissal” (Commissioner Williams in Thompson v John Holland  FWA 10363).
What should employers do about secret recordings?
Instant and real-time recording of events is now second nature to many and is considered culturally acceptable in many circumstances. Accordingly employers should expect this practice to continue and become more prevalent. Employers should not necessarily expect their employees or managers will understand that it can be unlawful in private workplace conversations.
Employers should consider their policy framework and consider whether it is appropriately adapted to inform and educate staff about the impropriety of covert recording. A good example is Thompson v John Holland  FWA 10363, where the employer successfully relied upon its Code of Ethics, which required employees to protect “individual’s privacy by the correct application of workplace surveillance privacy principles.” This statement allowed the Commissioner to conclude that the employer had a valid reason to dismiss the employee for misconduct.
Your meeting practices
Standard practices for meetings will also need to be considered. Useful ways to reduce the risk of a meeting being privately recorded include:
- informing employees in advance of meetings about the rules of play with respect to recording; and
- requiring each attendee to place their smart phones on the table.
Where you believe recording is appropriate, you should advise the other participants in advance that you propose to record the meeting, and request that they advise you if they object.
Clayton Utz regularly reviews employer policy frameworks to ensure legislative compliance and best practice.
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