The legality of recording conversations in the workplace

The legality of recording conversations in the work

There is little doubt that the growth in the availability and capability of technology provides increasing challenges to employers in the workplace. One particular aspect to consider is the ability of employees to record conversations on their mobile phones via relatively simple downloadable applications (commonly referred to as apps).

The situation of an employee covertly recording a conversation without the employer’s knowledge was recently considered in the case of BR v Mercy Hospitals. The case, which focused on the dismissal of a hospital attendant who was not vaccinated for COVID-19, is of interest because of the employee’s behaviour in arranging the recording of one of the meetings held to discuss her situation without the knowledge of the other participants.

As noted by Deputy President Alan Colman in his determination, “I agree with Mercy that Ms (R’s) secret recording of the meeting of 2 December 2021 was another valid reason for dismissal, and that it entailed misconduct…the secret recordings of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction”.

The Deputy President referred to comments he had made in an earlier case of TG v Australian Government Department of Human Services. In that case, he noted:

“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 against 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.”

In addition, the Deputy President warned in TG that such behaviour could have a significant impact on the culture within the workplace, noting, “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”.

Fundamentally, it should also be noted the concept of the inappropriateness of secret recordings of conversations would likely equally apply to an employer and easily corrected by notice to participants the meeting is recorded or appropriate workplace signage.

If an employee does wish to record a conversation, they must request consent from the employer for this to occur. It is recommended that employers ask the question of whether the employee is seeking to record any subsequent conversations.

With regard to the situation with employers, we would encourage employers to inform the employee of the recording process prior to a conversation occurring and also offer to provide the employee or their representative with a transcript of the recording or an actual copy of the recording shortly thereafter.

BR v Mercy Hospitals Victoria Ltd – [2022] FWC 711

TG v Australian Government Department of Human Services [2018] FWC 4878 (30 August 2018)

For queries about recording conversations, interviews, investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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