Recording of workplace conversations in unfair dismissal cases

The Fair Work Commission is generally reluctant to accept into evidence of covert recordings of conversations in the workplace. Here is an example of a Commissioner of the Commission doing so in a Queensland unfair dismissal case.

“Recording of conversations

Despite the laws of Queensland seemingly permitting the recording of conversations without the second party’s knowledge, I very often have strong views as to whether I will ordinarily permit recordings of conversations, particularly in the workplace, to be accepted into evidence. It is not conduct that I typically encourage or condone. Recording individuals within the workplace without their knowledge is, I consider, in most cases, underhanded and unacceptable. I will, however, consider each matter presented before me on a case-by-case basis. It is often a course of conduct not acceptable within relevant employers’ workplaces because of stated workplace policies……………………

I have determined to admit the recordings into evidence given the probative value of the recordings having regard to at least one contested fact; whether Ms Tang stated that she would only do the bare minimum. As I have earlier stated, I have also considered it useful to have regard to the manner in which UPG management spoke to Ms Tang, which does not prejudice UPG at all. In fact, I have been complimentary of UPG witnesses on this issue.”

Tang v Ultimate Positioning Group Pty Ltd T/A UPG (2020) FWC 5696 delivered 26 October 2020 per Hunt C