Secret recordings at work and the Fair Work Commission

These passages from an unfair dismissal case recently determined by the Faur Work Commission deal with the Commission’s view (with which I strongly disagree) about

 

“Dishonesty and Covert recordings

 

The Respondent also relies on an allegation of the Applicant’s general dishonesty and the covert recordings taken by the Applicant, as a valid reason for dismissal.

 

The Respondent relies on 3 incidences of general dishonesty by the Applicant:

 

  • During the investigation, the Applicant denied the conversation with Mr Neiva on 27 June 2023, which he now admits; and

 

  • In his response letter dated 29 June 2023, he denied Allegation 1 and denied any form of disciplinary action; and

 

  • The Applicant now admits lying to the company about sleeping on the job on or around 31 May 2023.41

 

I do not find that the first two incidents involved the Applicant behaving dishonestly. Whilst the Respondent emphasised that Mr Lainas refuted all three of the allegations in his response letter on 29 June 2023 and subsequently admitted to Allegation 2 and 3,42 I place little weight on this concession, given the breadth and lack of specificity of the allegations in the show cause letter. In refuting the allegations, it is not clear that Mr Lainas was denying every aspect of each allegation, especially in the context where a response was required within 24 hours.

 

The third incident took place on 31 May 2023 where Mr Hastie was caught sleeping on the job. The Applicant sent an email to his colleagues and management implying that he was the individual who was sleeping stating “Sorry team. I let you down. It won’t happen again.”43 In cross examination, the Applicant admitted that he sent the email and had lied about being the individual sleeping on the job, to take “the brunt of it” and “take the heat off” his mate.44 In cross examination, Mr Lainas stated “I took the brunt, because that’s the person that I am. That’s my character.”45 From the Applicant’s perspective, he appears to believe that, at best, misleading statements to his employer is acceptable when done for what he considers a greater moral or ethical purpose. It is not, and was unacceptable conduct.

 

The second issue is the covert recordings by the Applicant of three conversations. One was the discussion on 9 November where he was issued a verbal warning, the second was a ‘mediation’ discussion between the Applicant, Mr Jones, and another employee, Mr Cobby, and the third was the telephone call advising he was suspended on 29 June 2023.

 

The Applicant relies on the Decision in Classic Ceramic (Importers) Pty Ltd v Mary Heywood,46 which provides:

 

While I accept that surreptitiously recording workplace conversations with management may provide a valid reason for dismissal, I do not accept that such conduct would amount to serious misconduct in every case. There would generally need to be some additional element such as a direction to an employee not to record without consent, a policy governing recording at work, some contractual requirement that no consensual recordings not be made or an inquiry of the employer whether the employee

 

 

 

is recording, an indication that no recording is occurring, but the recording proceeds, nevertheless.

 

It is accepted that surreptitiously recording workplace conversations is usually inappropriate because it is unfair to other unsuspecting participants in such conversations who might, armed with the knowledge that the conversation is being recorded, otherwise have adopted a more circumspect language and tone and perhaps also not opined on particular matters. I also accept, as Colman DP observed in Tawanda Gadzikwa v Australian Government Department of Human Services that “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”. Such conduct may also be destructive of trust and confidence, the absence of which from an employment relationship will usually sound the death knell of that relationship.

 

In some cases, such conduct may be contrary to an employee’s contractual duty of good faith which would be a valid reason for dismissal, but this will not be so in every case. There may be persuasive reasons why a secret recording was justified, or the recording may be necessary to protect a particularly important interest.

 

The Applicant submits that these secret recordings are not a valid reason to summarily dismiss him, noting they were taken in the context of disciplinary meetings and in the absence of any specific policy that it was unacceptable to do so.

 

The Respondent submits that the covert recordings were highly inappropriate as the individuals were not aware that they were being recorded and had no opportunity to choose their words carefully or be guarded about revealing confidences or sensitive information.47

 

As held in Gadzikwa v Australian Government Department of Human Services,48 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 has the potential to lead to the corrosion of a healthy and productive workplace environment, especially when the Applicant stated in cross examination that he did not think that there was anything wrong with secretly recording the conversations and that he would do it again.49 It is also illuminating that even though the Applicant was recording the discussion and had at least the opportunity to moderate his language, he either did not do so, or did so and his conduct could have been even more intemperate.

 

I consider that the covert recording of, at least, the verbal warning discussion was highly inappropriate, and constitutes a valid reason for dismissal. It is also highly relevant to the question of whether reinstatement is an appropriate remedy. On his own evidence, the Applicant had a good relationship with Mr Jones (indeed he relies on the ‘jovial and friendly’ communication with him to explain one of the inappropriate emails he sent to him50) and he had Mr Wielgus present as his witness. There was therefore no reasonable justification to record the discussion. Any remaining concern about what was to occur during that meeting could have been addressed by advising Mr Jones and Mr Wielgus that he was recording the discussion.

 

 

 

Summary

 

Considering all these matters, I am satisfied that the Respondent had multiple valid reasons for the Applicant’s dismissal. The most significant of these is his conduct during the verbal warning meeting (including the conduct referred to in the discussion), the covert recordings and his abusive, rude and aggressive emails and communication with Mr Castro, Mr Jones and Mr Nieva.

 

To be clear, I accept Mr Lainas’ evidence, corroborated by Mr Gardner and which is not disputed by the Respondent’s witnesses, that swearing at the workplace is commonplace. However, the problem is not that Mr Lainas used bad language. The problem is his aggression directed at several co-workers (albeit not to their face) and several managers on multiple occasions. This weighs against a finding that the dismissal was unfair.”

 

 

Lainas v AMSPEC Australia Pty Ltd  [2024] FWC 311 delivered 7 February 2024 per O’Neill DP