
With the rise in recording technology, workplace privacy concerns have escalated. While recording a conversation in Australia is generally not illegal, conversations of a private nature are treated differently, creating potential issues for employers. Workplace discussions often involve sensitive topics, such as client information, raising questions such as:
- Is it lawful to intentionally record workplace conversations?
- Can an employee be dismissed for recording conversations covertly?
- Can employers record disciplinary meetings for procedural fairness?
- Can covert recordings be used as evidence in workplace investigations or at the Fair Work Commission (FWC)?
Navigating the legal framework surrounding workplace recordings can be complex, as federal and state laws vary in their application. This article outlines key legal considerations and offers guidance on managing covert recordings in the workplace.
The Legal Framework for Workplace Recordings
The Legality of recording workplace communications vary depending on the jurisdiction. Employers will still need to understand and comply with federal legislation as well as the laws applicable to the state in which they operate.
Federal Laws
- Privacy Act 1988 (Cth) regulates the collection and use of personal information, including recordings, and prohibits the publication of private conversations, especially for businesses with annual turnover exceeding $3 million.
- Fair Work Act 2009 (Cth) ensures procedural fairness in disciplinary matters. The FWC may accept or reject legally obtained recordings based on their fairness and relevance.
- Telecommunications (Interception and Access) Act 1979 (Cth) prohibits intercepting live phone conversations without consent.
State and Territory Laws
- NSW: The Surveillance Devices Act 2007 makes it illegal to intentionally record private conversations without consent from all parties.
The Act defines a private conversation to be:
Any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only;
- By themselves, or
- By themselves and by some other person who has the consent, express or implied, of all of those persons to do so.
But this does not include a conversation made in any circumstances in which the parties to it ought to reasonably to expect that it might be overhead by someone else.
- Other states, including Victoria, South Australia, Western Australia, Tasmania, and the ACT, mirror NSW’s laws.
- Queensland and the Northern Territory however, allow recording if the recorder is a party to the conversation, even if recorded covertly.
Thus, while recording private conversations with consent is generally acceptable, covert recordings are not—unless in Queensland or the Northern Territory, where such recordings are allowed if one party consents.
Is Covert Recording a Valid Reason for Dismissal?
The short answer is, yes. The FWC has stated that the making of covert recordings ‘strikes directly at the heart of the employment relationship and undermines the necessity of trust and confidence needed’. In addition, unfair dismissal cases such as Zhang v Royal Automobile Association of South Australia Incorporated t/a RAA and Chandler v Bed Bath N’ Table, make the FWC’s stance clear.
In Zhang the Commission held that the employee covertly recording a meeting between him and his managers had ‘fatally damaged’ the employment relationship and constituted a valid reason for dismissal. Further, the Commissioner did not accept the recording into evidence.
In Chandler’s case, the Commission supported the view held in Zhang, that a covert recording may constitute a valid reason for dismissal. Here, the making of the recording which had already been submitted into evidence for an unfair dismissal was discovered to be covertly recorded in a later determination for compensation. As, this was only found out after the determination, the dismissal was held unfair, however, for the avoidance of reinstatement as ordered, the employer successfully relied on the point that making the covert recording was grounds for dismissal due to a loss of trust and confidence. This means that, where the employer had discovered the recording during the employment, the employee could have been validly dismissed for making the covert recording.
Can Covert Recordings be Used in Court or at the FWC?
The admissibility of covert recordings is largely dependent on consent and the desirability of using the evidence. If all parties consent, subject to the general rules of admissibility the recording is typically admissible in court or at the FWC. However, where the recordings have been made covertly, they may only be admitted under the following exceptions. Covert recordings may be permissible if they are deemed to be in the public interest or if they are relevant to an issue at hand, such as proving unlawful conduct, harassment, or breach of employment laws.
The second key factor is the desirability of admitting the recording as evidence outweighing the undesirability of doing so. In line with the laws of evidence, these recordings are subject to a number of considerations, this includes:
- Its probative value
- The gravity of the impropriety or contravention in the circumstances
- Whether the recording was made intentionally
In the case of Ogbonna v CTI Logistics Ltd (No.2) 2015, these factors were considered for unlawful discrimination. Here an employee sought to admitted a covertly recorded conversation between himself and his employer, and was successful in doing so. The court considered the short length of the recording not being able to provide a sufficient impression of what occurred, and the intention and disclosure of the recording.
Ultimately, the court stated that “the desirability of admitting the recording did not outweigh the undesirability of admitting it considering the way it was obtained, and the fact that it was not of probative value, and in any event evidence of the meeting was obtainable, and further the way in which the recording was obtained was in contravention of section 5(1) of the Surveillance Devices Act 1998 (WA).
Can Employers Record Disciplinary Meetings?
Yes, as a matter of law, employers may, with the consent of all parties, record meetings. However, the FWC has provided that employees must be given an opportunity to respond to allegations. This means that any recordings must not be used to unfairly disadvantage an employee. Where these rules are abided by, and consent is obtained—whether explicitly or implicitly, such as through company policies that indicate meetings may be recorded—employers may generally record disciplinary or other meetings. However, the employer must ensure that the recording does not interfere with the employee’s right to procedural fairness. This includes ensuring that the employee is aware of the potential recording beforehand and has a fair opportunity to engage in the discussion.
Key Takeaways for Employers
- New South Wales, Victoria, South Australia, Western Australia, Tasmania, and the ACT, prohibit the intentional recording of private conversations without the consent of all parties
- In Queensland and the Northern territory, it is legal to record a private conversation if the recorder is a party to the conversation.
- Even if lawful, covert recordings can damage trust and confidence in the employment relationship, potentially justifying dismissal (depending on circumstances).
- Employers should include clear guidelines in workplace policies regarding covert recordings to avoid legal issues around consent.
- Before using covert recordings as evidence in workplace investigations, employers must weigh:
- The probative value of the recording, and
- The potential issues with using evidence obtained unlawfully or in violation of privacy expectations.
Further Advice
For further advice on how to manage recordings in the workplace, contact us here.
Ai Generated Podcast Version
For those that may be interested in a generative Ai podcast on the topic of covert recordings in the workplace, click here
Disclaimer
The podcast you are about to hear has been AI-generated using Google’s NotebookLM and source material from Maguire Legal on laws around covert recordings.
While covert workplace recordings are discussed in an informative and engaging manner, it is not intended as legal advice. The podcast weaves in AI-generated content supplementing the source legal information, providing an impression of a comprehensive exposition on the topic.
We enjoyed making the podcast. It is not a substitute for legal advice, but an interesting alternative to the often-boring presentation of the law. We hope you enjoy it.