Recording workplace meetings secretly

I have frequently criticized the  consistently expressed view of members of the Fair Work Commssion in unfair dismissal cases to the effect that irrespective of the statutory position in most Australian States that is is perfecty lawful for an employee to covertly record a conversation in the workplace to protect the employee’s lawful interests, to do so is a valid reason for dismissal. I was therefore pleased to read a decision of the Fair Work Commission in such a case today which at least places that proposition into a reasonable and legally coherent context; see the underlined passage below.

“ [26] If I had concluded that there was a dismissal in this case, I would have found that the dismissal was not unfair. Mrs Renehan evidently no longer wanted to work at the company. She did not get in touch with Ms Lapira. She did not respond to Ms Lapira’s email of 13 December 2022. Moreover, I consider Mrs Renehan’s conduct in secretly recording her meeting [2023] FWC 554 6 with Ms Lapira would have provided the company with a valid reason for dismissal. It is well established that evidence of an employee’s conduct that emerges after the dismissal may be relied on as a valid reason for dismissal in an unfair dismissal proceeding. This is consistent with the principle that it is for the Commission to determine for itself whether there was a valid reason for dismissal. Generally speaking, unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate. This is so, irrespective of whether it constitutes an offence in the relevant jurisdiction. In this regard, I adopt the observations that I made in Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 at [83]. Mrs Renehan did not offer any justification for her secret recording of the meeting. She had a cordial relationship with Ms Lapira. There was no critical interest at stake that could only reasonably be protected by a secret recording. [27] Finally, even if I had concluded that Mrs Renehan had been unfairly dismissed, I would not have awarded a remedy. Reinstatement was not sought and would not be appropriate. As to compensation, s 392(2)(c) requires the Commission to consider how long the employment would likely have lasted, had the dismissal not occurred. If there was a dismissal in this case, it occurred on 3 January 2023, when Ms Lapira asked Mrs Renehan to return company property. Had this not occurred, I consider that it is unlikely that Mrs Renehan would have requested to work any shifts, because she did not want to work for the company any longer. In my view, the company would likely have ended the employment relationship soon after. There would have been no loss in respect of this period because I consider that Mrs Renehan would not have worked any shifts. I would therefore not have ordered compensation. Conclusion [28] Mrs Renehan was not dismissed on the initiative of the employer for the purposes of s 386 of the Act. She was not forced to resign. The company’s jurisdictional objection is upheld. The application is dismissed. “

Renehan v Jasper Entity Pty Ltd (2023) FWC 554 delivered 7 March 2023 per Colman DP