In the recent unfair dis­missal deci­sion Karen Altham-Wood­ing v PKD­KAd­ven­tures Pty Ltd [2024] FWC 2753, the Fair Work Com­mis­sion (FWC) affirmed its pre­vi­ous­ly stat­ed dis­ap­proval of employ­ees mak­ing secret record­ings of meet­ings with colleagues. 

In this case, once Deputy Pres­i­dent Saun­ders had deter­mined the ini­tial ques­tion of whether there had been a dis­missal of employ­ment (in favour of the Appli­cant), he turned to a secret record­ing that she made dur­ing her employ­ment. The employ­er was not aware of the record­ing until the Appli­cant sought to rely upon it as part of her evi­dence in sup­port of the appli­ca­tion. The deci­sion to make and rely upon the secret recod­ing proved fatal to her claim – a strate­gic own goal. 

At para­graph 42 of the judg­ment, Deputy Pres­i­dent Saun­ders noted:

The mate­r­i­al filed by Ms Altham-Wood­ing in sup­port of her appli­ca­tion for unfair dis­missal includ­ed a record­ing she made of her atten­dance in the office at the Park on 28 May 2024. Ms Altham-Wood­ing secret­ly made that record­ing on her mobile phone. PKDK did not con­sent to the record­ing and did not become aware of it until Ms Altham-Wood­ing filed her mate­r­i­al in chief in the Com­mis­sion in accor­dance with my direc­tions. Because the record­ing was made secret­ly, I reject­ed the request by Ms Altham-Wood­ing to ten­der the record­ing at the hear­ing.

The rejec­tion of the request to ten­der the record­ing was over­shad­owed by the obser­va­tions Deputy Pres­i­dent Saun­ders then made at para­graph 43 about the appro­pri­ate­ness of the record­ing (foot­notes omitted):

I am sat­is­fied that Ms Altham-Wooding’s secret record­ing of her atten­dance in the office at the Park on 28 May 2024 was a valid rea­son for her dis­missal. That PKDK did not become aware of the secret record­ing by Ms Altham-Wood­ing until she filed her evi­dence in the pro­ceed­ings before the Com­mis­sion does not pre­vent the record­ing being con­sid­ered as a poten­tial­ly valid rea­son for Ms Altham-Wooding’s dis­missal because it is a mat­ter for the Com­mis­sion to deter­mine, on the evi­dence before it, whether there was a valid rea­son for the dis­missal. I con­sid­er that, unless there is a jus­ti­fi­ca­tion, the secret record­ing of con­ver­sa­tions in the work­place is high­ly inap­pro­pri­ate, irre­spec­tive of whether it con­sti­tutes an offence in the rel­e­vant juris­dic­tion, such as s 7(1) of the Sur­veil­lance Devices Act 2007 (NSW), which pro­hibits a per­son from using a lis­ten­ing device to record a pri­vate con­ver­sa­tion to which a per­son is a party.” 

In reach­ing this view, Deputy Pres­i­dent Saun­ders cit­ed with approval the obser­va­tions made by Deputy Pres­i­dent Col­man in Gadzik­wa v Aus­tralian Gov­ern­ment Depart­ment of Human Ser­vices [2018] FWC 1878, specif­i­cal­ly (at para­graph 43):

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 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 a healthy and pro­duc­tive work­place envi­ron­ment. Gen­er­al­ly speak­ing, the secret record­ing of con­ver­sa­tions with col­leagues in the work­place is to be deprecated.”

Deputy Pres­i­dent Saun­ders con­tin­ued his sur­vey of author­i­ties at para­graph 44:

Sim­i­lar­ly, in Schwenke v Sil­car Pty Ltd a Full Bench of the Com­mis­sion found on appeal that the mem­ber at first instance was enti­tled to con­clude that the Appel­lant had made the record­ing in secret and that this action was con­trary to his duty of good faith and fideli­ty to the employ­er and under­mined the trust and con­fi­dence required in the employ­ment rela­tion­ship. This action, in itself, was grounds for sum­ma­ry dis­missal.’ ”

Apply­ing these prin­ci­ples to the instant case, Deputy Pres­i­dent Saun­ders observed (at para­graph 45):

I do not con­sid­er that Ms Altham-Wood­ing had any legit­i­mate jus­ti­fi­ca­tion for secret­ly record­ing her atten­dance in the office at the Park on 28 May 2024. Ms Altham-Wood­ing had only been employed by PKDK for about a month at the time she made the secret record­ing. She was attend­ing the office at the Park to speak to Ms Whit­ting­ham or Mr Kennedy about her employ­ment. Mr Kennedy had, three days ear­li­er, sent Ms Altham-Wood­ing a text mes­sage ask­ing her to text him to set up a time for them to meet. Ms Altham-Wood­ing did not respond to that text mes­sage and instead just turned up at the office on 28 May 2024.”

Deputy Pres­i­dent Saun­ders then deliv­ered the coup de grâce to the unfair dis­missal appli­ca­tion at para­graph 46:

I am sat­is­fied that Ms Altham-Wooding’s con­duct in secret­ly record­ing her atten­dance at the office in the Park was con­trary to her duty of good faith and fideli­ty to her employ­er and under­mined the trust and con­fi­dence required in the employ­ment rela­tion­ship. It pro­vid­ed PKDK with a sound, defen­si­ble and well-found­ed rea­son to ter­mi­nate Ms Altham-Wooding’s employ­ment.”

Con­clu­sion

Some employ­ees who are in a con­tentious sit­u­a­tion in their employ­ment think they are being clever or strate­gic by secret­ly record­ing col­leagues. They naive­ly believe their attempts to catch out col­leagues by play­ing ama­teur pri­vate detec­tive and being wired’ will help them prove they are in the right and pre­vail in any future litigation.

As this deci­sion demon­strates, it is a mis­con­ceived notion. It proved fatal to the unfair dis­missal application.

Any record­ing should be by agree­ment or, alter­na­tive­ly, if an employ­ee appre­hends col­leagues will mis­rep­re­sent what is said in an impor­tant meet­ing relat­ing to their employ­ment, they should either take notes dur­ing the meet­ing or, if that is not prac­ti­cal, make a file note of the dis­cus­sion as soon as pos­si­ble after its con­clu­sion. The secret recod­ing strat­e­gy may not nec­es­sar­i­ly always be ille­gal (by con­sti­tut­ing a breach of sur­veil­lance devices leg­is­la­tion such as the Sur­veil­lance Devices Act 2007 (NSW)) but it is almost invari­ably a sig­nif­i­cant red flag employ­ers can seize upon to suc­cess­ful­ly argue that con­tin­ued employ­ment is, or was, ren­dered untenable. 

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

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