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Secret Recording by Employees: An Own Goal
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.”
This view was reinforced at paragraph 55 in which Deputy President Saunders observed:
“I consider that Ms Altham-Wooding’s secret recording of her attendance in the office at the Park on 28 May 2024 destroyed the trust and confidence in her employment relationship with PKDK. This betrayal of trust outweighs the facts and circumstances which support Ms Altham-Wooding’s claim that she was unfairly dismissed.”
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.