The Legality of recording meetings

31-Jul-2020

Can an employee secretly record meetings with their employer?

Have you ever considered recording a conversation with your employer?

Recording conversations has become more common due to the functionality of mobile phones.

It is important to understand your obligations as an employee before recording a conversation in the workplace.

Is it legal?

In Australia, the legality of recording a conversation varies from State to State so before you go pushing that button, make sure you understand the laws that apply to the State you live or work in.

In New South Wales, the Australian Capital Territory and Tasmania, the relevant legislation makes it an offence for a person to record a conversation unless:
a. the person has the consent of all the parties involved; or

b. there is a belief that it is “reasonably necessary for the protection of the lawful interests of that party”.

Despite the defence to protect your lawful interests, it is important that you seek legal or industrial advice before you disclose any recording you intend to use.

It has been found in some cases where individuals have recorded their boss, for what they believed was for the protection of their legal interests, the court has found that the true intention was to use the recording to “sue” their employer and, therefore, it was found to be illegal recording.

Penalties in NSW for illegally recording a person can include significant fines and/or up to five years imprisonment.

Recording your workplace disciplinary meeting or dispute

Despite it being legal to record a conversation in some States and Territories in certain circumstances, the act of recording a conversation secretly has come under scrutiny by the Fair Work Commission (FWC).

In unfair dismissals, the FWC has traditionally taken a dim view of such behaviour.

For example, Commission Cloghan upheld the dismissal of a Trade Assistant who secretly recorded a disciplinary meeting in the matter of Schwenke v Sinlcar Pty Ltd.

In this matter Mr Schewenke’s defence to secretly recording the meeting was that his employer would “find any excuse to justify dismissal”. The Commissioner found that this excuse was “self-serving” and “contrary to his duty of good faith or fidelity to the Employer, and undermined the mutual trust and confidence required in the employment relationship.”

Each case will vary on its facts so getting advice is crucial.

In Ron Leaver v Australian Nuclear Science and Technology Organisation, Senior Deputy President Drake of the Australian Industrial Relations Commission stated:

The ordinary conduct of personal, business and working relationships in our community is predicated on the basis that if there is to be any record of a meeting it will be agreed in advance. Anything else is quite properly described as sneaky. Its very sneakiness makes it abhorrent to ordinary persons dealing with each other in a proper fashion.

Similarly, in Jalea v Qantas Link Commissioner Bissett upheld the dismissal of a flight attendant noting that Ms Jalea’s conduct, in secretly taping a disciplinary meeting, impacted on the trust her employer may have had in her.

Conclusion

While it may be tempting to secretly record a conversation between you and your manager or HR that you think may be useful to you in the future, you need to consider the ramifications before doing so.

It is important to remember that it will depend on the circumstances of your matter and it is possible that by recording your employer/line manager it could potentially lead to disciplinary action (or penalties as outlined above).

The best way to safeguard yourself is to seek permission from the persons involved in the conversation.

ASMOF members should always seek our advice before attending any disciplinary meeting as we can provide industrial advice and a support person.

A version of this article was originally published on Hall Payne Lawyers’ blog. To read the original article click here.