For some years now I have often publicly criticized decisions of the Fair Work Commission which have been to the effect that it is
(a) unlawful for an employee to covertly record a physical conversation which he or she regards as relevant to a workplace investigation or disciplinary process;
or (b) wrong for an employee to do so,
or (c) that to do so constitutes a valid reason for the employee’s decision.
I have published many blogs to this effect and to the effect that such general propositions are simplistic and wrong.
The legality of covertly recording a physical conversation (ie one which takes place in person) is determined by State legislation and I concede that the legislation is not uniform throughout Australia. Furthermore I have pointed out that it is unlawful to record a telephone conversation, or to evesdrop in on such a conversation, and that is the case because federal telecommunications legislation renders it so.
I have pointed out that it is perfectly lawful in Western Australia for a person to covertly record a physical conversation to which the person is a party where the person is doing so to protect a lawful interest; see sec 5(3) Surveillance Devices Act 1998. And it is difficult to see how the covert recording of a meeting between an employee and a manager which may lead to the dismissal of the employee can be said not to be capable of being for that purpose.
Thus it is welcome to come across a decision of a senior member of the Fair Work Commission, for whom I have the highest respect, who appears to agree with my views. Here is an extract from the decision.
At the hearing, it became evident that the Applicant had made a series of notes about various interactions, meetings he attended and discussions he had with co-workers. Some of these were made from audio recordings made by the Applicant without the knowledge or consent of other participants in the meeting or the discussion. 160
The Respondent contends that the recordings disclose a number of matters that are relevant including:
- the Applicant was warned by his union representative, Alice Dunn, that covert recordings of discussions is inappropriate and a “sackable offence” 161however the Applicant subsequently recorded the 14 February 2018 and the 19 February 2018 meeting;
- the Applicant had discussed with his representatives how he could respond to the allegation that he lied to Mr Harper on 21 November 2017 and then proceeded to give evidence that what he told Mr Harper was the truth; 162and
- after the meeting on 14 February 2018, the Applicant during a discussion with his representatives acknowledged that he should not have approached another participant in the investigation and he should not have told Mr Harper that he could not recall it happening. 163
The Respondent notes that it has not had the opportunity of cross-examining the Applicant about the recordings given his failure to disclose the recordings at the appropriate time but nonetheless the recordings further support the Respondent’s contention that his conduct in covertly recording meetings and discussions jeopardises the prospect of the Respondent having trust and confidence in the Applicant. 164
The Applicant relies upon the Surveillance Devices Act 1999 (Vic) to contend that the Applicant covertly recorded meetings and discussions to protect his own interests. 165 The Applicant also contends that the reason why a recording is made and its use is relevant, and therefore the Applicant recording a conversation with his employer to protect what he perceived to be his legitimate interest is reasonable, particularly in instances where allegations are made against the Applicant and he believed his job was in jeopardy.166
There is no dispute that the Applicant made the recordings and did so without the knowledge or consent of the other participants in the meetings and conversations which were recorded. The recording, at least in Victoria, of the relevant meetings and conversations is not unlawful. I also do not accept that the recording by itself will always provide, or that in this case that it provides, a valid reason as suggested by the Respondent for dismissal. True it is that conduct which is not known to the employer at the time of the dismissal may nonetheless provide a valid reason for dismissal, for example a discovery after a dismissal that the former employee engaged in theft or fraud during employment. But here the Respondent seeks to suggest that the valid reason is based upon the impact that the surreptitious recording has had on the relationship of trust between the Applicant and his employer.
In the case of most misconduct justifying dismissal which is afterwards discovered, that conduct will usually provide a valid reason by reason of the nature of the conduct. Separately, it may have a particular impact on the relationship between the former employee and the employer. Dismissal is for a valid reason because the conduct, though unknown at the time of the dismissal, was misconduct. But dismissal will usually not be justified if the conduct is not misconduct or wrongful conduct, if it is permitted by law and not prohibited by the employer. If there is to be a relevant relationship impact at the time of the dismissal sufficient to found a valid reason it seems to me that the conduct (which is not unlawful or otherwise misconduct or wrongful) would need to have been known. It can hardly be said that the Applicant’s surreptitious recording had a particular effect on the employment relationship thus providing a valid reason in circumstances where the conduct which was not misconduct, wrongful or unlawful was not known and the damage to the relationship could not have occurred at the time of dismissal. It might very well impact upon the relationship or more properly its re-establishment now, but it could not have had the requisite deleterious effect at the time of dismissal. Thus, the act of surreptitious recording in and of itself, whatever else might be said about it, does not provide a valid reason for the dismissal in the circumstances of this case.”
Moran v KDR Victoria Pty Ltd T/A Yarra Trams (2018) FWC 6144 delivered 20 November 2018 per Gostencnik DP