Recording workplace meetings

This passage from a recent unfair dismssal case of the Fair Work Commission contains dicta from a senior member of the Fair Work Commssion to the effect that the covert recording of a workplace meeting when an employee had been provided with advice from the employer’s representative that it was not permitted constituted serious misconduct. I am on record in various places in posts published by this web site criticizing the view sometimes expressed by members of the Commssion in unfair dismissal decisions that it is inapprorpriate and wrong for an employe to covertly record a workplace meeting even when to do so is permitted in the particular circumstances in which the employee may find himself or herself by the relevant laws of the State, such as in Western Australia by the Surveillance Devices Act 1958.

However in this case, the Deputy President has expressed his view in the context of the employer having expressly forbidden the employee from recording the meeting (by video) which I regard as a legitimate distinguishing factor from the proposition put by some other members of the Commssion from time to time to the effect that it is simply not permissable simpliciter for an employee to do so without the consent of the employer. I disagree with that blanket proposition.

In my view however it is lawful and reasonable for an employer, whether by general published policy or ad hoc instruction (as in this case), to prohibit an employee or employees from recording workplace meetings and such an instruction is unlikely to offend the legal effect of State laws which render the practice lawful where it is undertaken to protect a lawful and legitimate legal interest.

Finally, Coles submits it had a third valid reason for dismissing Ms Scale being that Ms Scale engaged in serious misconduct by secretly video recording the meeting on 10 March 2022, after Mr Taylor had expressly stated that he did not consent to the meeting being recorded and Ms Scale had confirmed that she understood this. Coles says it did not become aware that Ms Scale had recorded the meeting until it saw the video recording Ms Scale filed and served as part of her documents for this proceeding. Coles relies therefore on the established principle that evidence of an employee’s misconduct that emerges after dismissal may be relied upon by an employer as a valid reason for dismissal in an unfair dismissal proceeding. 17 Ms Scale does not dispute that Mr Taylor told her that he did not consent to the 10 March 2022 meeting being recorded or that she had confirmed that she understood this. However, Ms Scale says she consented to the meeting being recorded and submits that making the recording was “completely lawful and legal.”18

[29] Putting the legality of having made the recording to one side, I consider Ms Scale’s actions in secretly recording the 10 March 2022 meeting constitutes serious misconduct and can be relied upon by Coles as a valid reason for dismissal. I endorse the view expressed by Deputy President Colman in Roman 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 because of the reasons outlined by the Deputy President in Gadzikwa v Australian Government Department of Human Services:

“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.” 19

[30] I do not consider that Ms Scale had justification to secretly record the 10 March 2022 meeting. This is because Ms Scale had a support person present for the meeting and was invited to take notes of the discussion. Further, the meeting had been preceded by the show cause letter dated 25 February 2022 which had provided background information regarding the purpose of the meeting. I consider Ms Scale’s actions went beyond being inappropriate. They were reprehensible because she continued to record the discussion at the meeting on 10 March 2022 after confirming that she understood Mr Taylor did not consent to this. This action demonstrated a complete lack of integrity and it is difficult to see how any line manager at Coles would have been able to take Ms Scale at her word in any similar scenario going forward.

Scale v Coles Supermarkets Pty Ltd (2022) FWC 1593 delivered 22 June 2022 per Clancy DP