A Fair Work Commission Deputy President has delivered a decision in an unfair dismissal case that the termination of the employment of an employee for recording a workplace conversation was for a valid reason due to the principle that “unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction, such as s 7(1) of the Surveillance Devices Act 2007 (NSW), which prohibits a person from using a listening device to record a private conversation to which a person is a party”.
I disagree with the blanket proposition, which has been expressed by some other members of the Commission, that the covert recording of a workplace meeting by an employee when the bona fide purpose of the recording is to protect a valid legal interest which the employee has is inappropriate. This decision does not go that far, rather the Deputy President conditions his view by asserting “I consider that, “unless there is a justification” (my emphasis), the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction, such as s 7(1) of the Surveillance Devices Act 2007 (NSW), which prohibits a person from using a listening device to record a private conversation to which a person is a party.” I agree with this statement.
The Deputy President does not, in this decision, offer up an explanation of what might constitute “a justification” for an employee to covertly record a conversation in the workplace, and that is, with respect to him, entirely proper because members of the judiciary generally do not speculate about possible nuances to a legal proposition in the absence of a need to do so to decide a case. This is sometimes referred to as the “ratio decidendi” principle.
We will need to wait for the next case in which this contentious principle is dealt with by a senior member of the Commission for further light to be shone on the issue.
Here is an extract from the decision.
…………………….“Consideration re dismissal
[32] I consider that a reasonable person in the position of the parties would have understood that Ms Altham-Woodings’ casual employment with PKDK had come to an end on 22 July 2024. This was the date on which Ms Altham-Wooding’s access to PKDK’s rostering App was removed. By this date 20 days had passed since Ms Altham-Wooding sent her email to Ms Whittingham and Mr Kennedy on 2 July 2024 requesting a meeting to discuss her employment, to which she had not received a response. These events occurred in a context in which PKDK had not offered Ms Altham-Wooding a casual shift at the Park since she worked her last shift on 24 May 2024. This was so notwithstanding the fact that other casual employees of PKDK were being offered and undertaking shifts at the Park, both in reception and housekeeping roles. Further, although Mr Kennedy had asked Ms Altham-Wooding, by text message, on 25 May 2024 to reply to his text message in order to set up a time for a meeting, Ms Altham-Wooding attended the office at the Park, without prior notice or arrangement, on 28 May 2024 to speak with Ms Whittingham or Mr Kennedy about her employment. Not only were they not available to speak with Ms Altham-Wooding at that time, they made no effort to contact her at a later time. This breakdown in communication occurred, according to Mr Kennedy, because Ms Altham-Wooding attended the office at the Park on 28 May 2024, rather than responding to Mr Kennedy’s text message sent on 25 May 2024 asking Ms Altham-Wooding to reply to his text so a meeting time could be set up. I am satisfied that PKDK’s conduct, as summarised in this paragraph, would have led a reasonable person in the position of Ms Altham-Wooding to believe, as at 22 July 2024, that their casual employment with PKDK at the Park was at an end.
[33] Ms Altham-Wooding sent a resignation email to PKDK on 26 July 2024. But I have found, for the reasons set out above, that her employment with PKDK came to an end on 22 July 2024. Ms Altham-Wooding’s employment with PKDK did not come to an end by way of Ms Altham-Wooding’s resignation. Instead, I am satisfied that PKDK’s conduct, as set out above and summarised in the previous paragraph, was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment of Ms Altham- Wooding on 22 July 2024.
[34] For the reasons given, I am satisfied that the employment of Ms Altham-Wooding with PKDK was terminated on PKDK’s initiative. It follows that Ms Altham-Wooding was dismissed within the meaning of s 386(1)(a) of the Act.
Was the dismissal harsh, unjust or unreasonable?
[35] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Ms Altham-Wooding’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
General principles
[36] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.9 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”10 and should not be “capricious, fanciful, spiteful or prejudiced.”11
[37] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.12 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).13
[38] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.14 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.15
[39] The question of whether there was a valid reason must be assessed by reference to facts which existed at the time of the dismissal, even if they did not come to light until after the dismissal.16
[40] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.17 In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.18
[41] A reason will be ‘related to the capacity’ of the applicant where the reason is associated or connected with the ability of the employee to do his or his job.19 The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.20
Consideration re valid reason
[42] The material filed by Ms Altham-Wooding in support of her application for unfair dismissal included a recording she made of her attendance in the office at the Park on 28 May 2024. Ms Altham-Wooding secretly made that recording on her mobile phone. PKDK did not consent to the recording and did not become aware of it until Ms Altham-Wooding filed her material in chief in the Commission in accordance with my directions. Because the recording was made secretly, I rejected the request by Ms Altham-Wooding to tender the recording at the hearing.
[43] I am satisfied that Ms Altham-Wooding’s secret recording of her attendance in the office at the Park on 28 May 2024 was a valid reason for her dismissal. That PKDK did not become aware of the secret recording by Ms Altham-Wooding until she filed her evidence in the proceedings before the Commission does not prevent the recording being considered as a potentially valid reason for Ms Altham-Wooding’s dismissal because it is a matter for the Commission to determine, on the evidence before it, whether there was a valid reason for the dismissal.21 I consider that, unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction, such as s 7(1) of the Surveillance Devices Act 2007 (NSW), which prohibits a person from using a listening device to record a private conversation to which a person is a party. In this regard, I adopt the following observations made by Deputy President Colman in Gadzikwa v Australian Government Department of Human Services:22
“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.”
[44] Similarly, in Schwenke v Silcar Pty Ltd23 a Full Bench of the Commission found on appeal that the member at first instance “was entitled to conclude that the Appellant had made the recording in secret and that this action was contrary to his duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship.
This action, in itself, was grounds for summary dismissal.”24
[45] I do not consider that Ms Altham-Wooding had any legitimate justification for secretly recording her attendance in the office at the Park on 28 May 2024. Ms Altham-Wooding had only been employed by PKDK for about a month at the time she made the secret recording. She was attending the office at the Park to speak to Ms Whittingham or Mr Kennedy about her employment. Mr Kennedy had, three days earlier, sent Ms Altham-Wooding a text message asking her to text him to set up a time for them to meet. Ms Altham-Wooding did not respond to that text message and instead just turned up at the office on 28 May 2024.
[46] I am satisfied that Ms Altham-Wooding’s conduct in secretly recording her attendance at the office in the Park was contrary to her duty of good faith and fidelity to her employer and undermined the trust and confidence required in the employment relationship. It provided PKDK with a sound, defensible and well-founded reason to terminate Ms Altham-Wooding’s employment.
Conclusion re valid reason
[47] I am satisfied on the evidence that PKDK had a valid reason to terminate Ms Altham- Wooding’s employment.
[48] That PKDK had sound, defensible and well-founded reasons to terminate Ms Altham- Wooding’s employment weighs against Ms Altham-Wooding’s contention that her dismissal was harsh, unjust and unreasonable.”
Altham-Wooding v PKDKAdventures Pty Ltd [2024] FWC 2753 per Saunders DP
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc2753.pdf