Australia has experienced a rapid expansion in the use of smartphones since Apple launched the iPhone here in 2007.  These devices have the capability, through a simple touch of the screen, to play music, download videos and even discretely record audio.

Covert recordings were a feature of a recent unfair dismissal decision, Thomas v Newland Food Company [2013] FWC 8220 (21 October 2013). The applicant employee had, during his employment,  secretly recorded conversations he was having with senior management.  He was later dismissed and made an unfair dismissal claim seeking reinstatement. He relied, in part, on his secret recordings.

Deputy President Sams found that the employee had been unfairly dismissed.  However, whilst the employee’s secret recordings were legal (in Queensland), the act of recording was found to have breached the trust between the parties. DP Sams consequently ruled out reinstatement as a remedy.

Listening in

The laws surrounding the use of listening devices and covert recordings vary between each of the States.  In Queensland, covertly recording a conversation to which you are a party is legal.  In some jurisdictions, a party to a private conversation can covertly record the conversation where the party is protecting their lawful interests.  Otherwise, for the most part, recording  requires consent from all the parties participating in a private conversation.

Notwithstanding, employees’ covert recording of disciplinary meetings and other run-ins are increasingly a feature in contentious employment relationships.

Secretly taping conversations generally suggests a breach of trust that strikes at the heart of an employment relationship, as DP Sams found in Thomas. Late last year, the dismissal of an employee who had covertly recorded a discussion about his duties on his mobile phone was upheld: see Thompson v John Holland Group Pty Ltd [2012] FWA 10362 (18 December 2012).

The act of covertly recording discussions can, or itself, provide a reason for dismissal, but the use of recordings in subsequent proceedings is a vexed matter. In August this year, an employee unsuccessfully attempted to admit covert recordings into evidence in an unfair dismissal claim, where the recording had “potentially” been illegally obtained: Haslam v Fazche Pty Ltd t/a Integrity New Homes [2013] FWC 5593 (12 August 2013).  Despite this, the Federal Circuit Court has admitted evidence that had allegedly been inadvertently recorded on a mobile telephone in a general protections claim: Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 3) [2013] FCCA 694 (12 July 2013). 

Switching off

Employers should ensure that their codes of business practice, and any relevant surveillance policies make clear that covert recording by individuals at work is not permitted.

HR practitioners can also take some control in respect of the risk of recordings in a disciplinary or similar meetings with an employee. This could be achieved, for example, by:

  • informing the employee that the meeting will not be recorded by HR, and  asking the employee to confirm that they will not be using any device to record the conversation; 
  • turning off phones to avoid distractions and to show focus on the conversation at hand, and asking the employee to do the same; and
  • ensuring that  the employee has access to a pen and paper so he/she has the option of taking notes, if desired.

Managing technological advances is not always easy.  Smartphones have changed the workplace, for better or worse.  However, good management of technological progress will ensure that employment relationships remains steadfast …after all, there will never be an app for that!