This extract from an unfair dismissal decision of the Fair Work Commission deals with the relationship between whether a covert recording in the web site can be a valid reason for dismissal.
“Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[203]
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”181 and should not be “capricious, fanciful, spiteful or prejudiced.”182 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.183 In the current matter, the Respondent asserts that valid reasons existed based on both conduct and capacity.
Conduct concerns
[204]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination:184
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”185
[205]
In its oral submissions, the Respondent sought to rely on the Applicant’s covert recordings of meetings and telephone discussions she was involved in as a valid reason for termination, and considered the recording of the mediations particularly egregious. The tendering of both the audio files and the transcription of those audio files is a sufficient basis for determining that such conduct occurred.
[206]
The question of whether the covert recording of discussions in this way justifies termination is a less straightforward proposition. Certainly in Victoria, where the recording occurred, it is not an offence to record a conversation one is party to. However, conduct need not rise to the level of criminality in order to be considered destructive of an employment relationship and a valid reason for termination.186
[207]
In Gadzwika v. Australia Government Department of Human Services, Colman DP described the practice of covert recordings as inappropriate:
“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
180 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
181 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
182 Ibid.
183 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
184 Edwards v Justice Giudice [1999] FCA 1836, [7].
185 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
186 Schwenke v. Silcar [2023] FWCFB 9842 at [33].
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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 healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.”187
[208]
However, in Gadzwika, Colman DP was prepared to accept that recording in this way would not be considered inappropriate if there was a justification for it. The justification advanced by the applicant in that matter was that the recording was necessary to protect himself. Colman DP was unmoved by this, essentially finding that the misdeeds the applicant were alleging against his colleagues were unsubstantiated. But Colman DP did accept that had those allegations been substantiated, the recording would be considered by him to be justified.188 I interpret that to suggest that a recording might be justified when it provides evidence that a disputed or denied prejudicial action toward an applicant in an unfair dismissal matter did in fact occur.
[209]
In Thomas v. Serco189, Saunders DP was prepared to give consideration to a justification mounted by an applicant in an unfair dismissal in respect of a covert recording he had made, notwithstanding that the Deputy President considered there was a real and appreciable danger of that applicant being convicted of an offence in connection with doing so (the recording occurred in NSW). The argument of justification was rejected on the basis that there were others present to take notes during the relevant discussion and there was no established reason for distrusting his employer.190 Similarly, in Lainas v. AMSPEC Australia,191 DP O’Neill found that the availability of a witness at a meeting and the lack of reason to distrust the other party to the recorded conversation at that meeting had the result that there was no justification for the covert recording, and such recording was found to be a valid reason for dismissal. In, Chandler v. Bed Bath N’ Table192 Commissioner Lee was open to the notion that a person might be justified in making a covert recording out of genuine fear, but was not persuaded in that matter that the fear was genuinely held. Commissioner Lee also found it relevant to take into account the damage to an employment relationship caused by a covert recording, even if such damage was not intended by the person who made the recording.
[210]
I am unpersuaded by the Applicant’s submissions regarding the circumstances of her recordings. I have made findings about this at paragraph [184] above. The professed lack of any prohibition on recording is insufficient to amount to justification in this case in light of those findings. To my mind, a justification must speak not only to the fact of making a recording but also to the fact of doing so covertly. The justifications by the Applicant go some way to explaining the former, but not the latter.
[211]
I accept that the Respondent did not become aware of the covert recordings until after dismissal took effect. That does not preclude the Respondent from relying on it as a valid reason, being conduct that occurred while the employment was intact.193 In the circumstances, I consider that the covert recordings made by the Applicant were a valid reason for termination.
187 At [83]
188 At [84]-[85].
189 [2023] FWC 674.
190 At [42].
191 [2024] FWC 311.
192 [2022] FWC 3706.
193 Byrne and Frew v. Australian Airlines [1995] 185 CLR 410 at 467.
[2026] FWC 3477
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Capacity concerns
[212]
Where a dismissal is said to be related to the person’s capacity, section 387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.194
[213]
I follow from my findings at paragraph [180] above that there was no valid reason related to the Applicant’s capacity.
Was the Applicant notified of the valid reason?
[214]
Proper consideration of section 387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under section 387(a).195
[215]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,196 and in explicit197 and plain and clear terms.198
[216]
There was no notification of Respondent’s reasons for dismissal related to the Applicant’s conduct in covertly recording conversations, as the Respondent was not aware at the time of the dismissal that such recording had occurred.
[217]
As I have not been satisfied on the evidence that there was a valid reason related to the Applicant’s capacity, I am not required to consider that reason in this limb of the decision making process. I do however make some observations on related issues in paragraphs [225]-[226] below.
Hawkins v Crossway Baptist Church Inc – [2026] FWC 3477 delivered 11 September 2026 per Clarke C