In a recent decision the Fair Work Commission found that an employee’s secret recording at work was a valid reason for dismissal and dismissed her unfair dismissal application.
The Facts
Ms Altham-Wooding was employed as a casual at a holiday park in housekeeping and reception. She was unhappy with her rostered hours. An email asking about her shifts was not responded to by the employer and her access to the employer’s rostering app was removed. She applied for unfair dismissal.
At the hearing she sought to rely upon a recording that she secretly made on her mobile phone when attending at the employer’s office. The employer was unaware of the recording until she filed her evidence for the hearing.
The employer relied upon the secret recording as a valid reason for dismissal.
The Decision
The Fair Work Commission found that there was no legitimate justification for the secret recording. It was contrary to her duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship.
The Commission quoted with approval a previous decision explaining why secret recordings are usually inappropriate:
“The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.”
The secret recording was a valid reason for dismissal and the unfair dismissal application was dismissed. It did not matter that the employer was unaware of the secret recording at the time of the employment termination.
Implications
Employees need to be aware that secretly recording a workplace meeting or conversation may amount to a breach of employment that justifies dismissal.
An employee should ask the employer and the other participants for permission before starting to record. If permission is not given, it will usually be inappropriate to record at all.
Employers are also recommended to be cautious about making secret recordings. Although the decision concerned an employee’s recording, the same ‘good faith and fidelity’ principles could also apply to the detriment of an employer that has made a secret recording.
Employees and employers should also be aware that secretly recording a conversation can breach state legislation, depending upon the laws of the state/territory where the recording occurs and how the recording was made.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.
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