Recording work meetings

The Fair Work Commission holds what appears to be a unanimous view of its members that it is a valid reason for an employer to dismiss an employee that the employee covertly recorded a meeting between management and the employee.

I am on record (https://fairworklegaladvice.com.au/?s=recording+conversations) criticizing this apparently stringent and dogmatic view because in most states it is entirely lawful for a person to covertly record a private conversation in which he or she is participating in circumstances in which the employee is doing so to protect a lawful interest or right; see for example sub sec 5(3) Surveillance Devices Act 1998 WA.

“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 AlthamWooding’s employment.

[48] That PKDK had sound, defensible and well-founded reasons to terminate Ms AlthamWooding’s employment weighs against Ms Altham-Wooding’s contention that her dismissal was harsh, unjust and unreasonable.

Notification of reason (s 387(b))

[49] PKDK did not notify Ms Altham-Wooding of the reason connected with her secret recording of her attendance in the office at the Park on 28 May 2024. However, this was because PKDK was not aware of the secret recording until Ms Altham-Wooding filed her evidence in these proceedings.

Opportunity to respond (s 387(c))

[50] PKDK did not give Ms Altham-Wooding an opportunity to respond to the reason connected with her secret recording of her attendance in the office at the Park on 28 May 2024. Again, this was because PKDK was not aware of the secret recording until Ms AlthamWooding filed her evidence in these proceedings.