After a director allegedly secretly recorded a performance meeting, an employee claims he was dismissed for complaining about it. However, the director says the employee was bullying him. Who is in the right?

If an employee complained about being secretly recorded by their superior during a performance meeting, you would discipline the director, right? It’s clear they’ve breached company rules. But what if that director claimed the employee in question had been bullying them, leading the director to use the recording as proof? What would you do?

A Northern Territory council recently faced a similar scenario.

In response to an Australian Services Union (ASU) adverse action claim seeking the reinstatement of a former employee (or $400,000 compensation for lost wages), the council director who the employee reported to, and to whom the claim has been made against, is now pointing the finger at HR to bear the brunt. 

After the employee complained about the director allegedly secretly recording sensitive meetings, including a performance review, and possibly sharing them, he was dismissed only a few weeks later. He claims this was due to his complaint about the recordings, but the director said the employee’s dismissal stemmed from a history of “upwards bullying”.

The director, who claims he was the victim of said bullying, told the Federal Circuit Court that the employee was a “cancerous thorn in the side of council” and that he has disrupted team cohesion, been insubordinate and made personal attacks on the director’s character and bullied him.

The council informed the ASU mid-last year that the director had been told to refrain from secretly recording sensitive meetings in the future and, it would seem, had hoped this would be the end of the discussion. The employee and the ASU felt differently. 

Secret recordings and alleged bullying come to a head

Proof of the alleged bullying can be found in the Fair Work Commission’s records, which show that the director applied for an anti-bullying order against the employee, in which he accused the employee of making “vexatious comments” and conspiring with other staff members (the details of this are unknown).

As a result, the reporting lines were temporarily changed to accomodate the director. However, when this order was subsequently withdrawn, the council restored the reporting line between the employee and director and tensions continued to bubble.

Attempting to smooth over any discord that arose from the alleged secret recording and bullying, the council arranged for mediation between the employee, who was invited to bring a support person, and the director, who had the corporate manager who is responsible for HR (hereby referred to as the HR representative) designated as his support person.

The ASU, however, said the employee chose not to attend mediation because of the “power imbalance” that would arise if the director had the HR representative as their support person, and because the solicitor mediating the dispute was presumably selected and instructed by the council.

“It wouldn’t be appropriate for an HR representative to sit silently in this sort of meeting… They would need to facilitate, and that’s not what the definition of a support person is.” – Pooja Kapur, employment lawyer, Owen Hodge Lawyers

As a result of the employee not partaking in the mediation, the director said he had “no choice” but to issue a dismissal. Other grounds for dismissal mentioned in the letter included not keeping his car clean, smoking in front of the building and permitting another employee to bring her child to work.

Feeling this was unreasonable, the employee and ASU hit back with the adverse action claim.

The director is now trying to wipe his hand’s clean of the situation, saying he delegated his authority to dismiss employees to the HR representative five weeks prior to the dismissal in question. Given the director’s claim that the HR representative made the decision for dismissal, he says she, and the council, should bear the penalty. 

Who is in the wrong here?

According to employment lawyer Pooja Kapur from Owen Hodge Lawyers, the employee had every right to complain about the director secretly recording meetings, regardless of the state in which the conduct occurred (it is not illegal for an employee to record a conversation in the Northern Territory, provided it is for their own legal protection).

“It has to be made known to that person that they’re being recorded and that consent needs to be obtained in order to proceed with the recording and use it in future,” says Kapur. “It doesn’t matter which state you’re in; consent is key.”

Given the seriousness of the privacy breach, Kapur says the council’s response (i.e., telling the director not to secretly record conversations again) was inadequate. Essentially, he got a slap on the wrist and the employee got the boot.

“[Secretly recording conversations] is a big breach of confidentiality, and it deters employees from being able to communicate openly with their employers or HR managers. If someone has an issue in the workplace, it’s never going to get resolved if people are too scared to speak up,” says Kapur.

She believes disciplinary action taken against the director – whether a formal warning, a one-week suspension, or another penalty entirely – would have “sent a message to the manager that his complaints are being heard and accepted”, while deterring the director or other employees from repeating such behaviour.

“If the [secret recording issue] had been handled a bit more strongly, that might have prevented the situation from worsening… but I don’t think it would have avoided it altogether. I think that it was inevitable for this to escalate because no due process was followed,” says Kapur.

Secret recording complaint dealt with ‘on a whim’

There was “no proper investigation” into the employee and director’s behaviour, says Kapur, and formal processes weren’t followed when attempting to address the tensions brewing.

“When the employee raised his complaint [about being recorded], the HR [representative] should have noted it down in detail, produced a summary of the complaints, and then presented them to the director… Then an analysis or investigation should have been done into the complaint, and the response,” says Kapur.

“If they find that neither party is at fault, they should hold a mediation between the two … but the mediator should be an independent person.”

A lack of clarity around each stakeholder’s involvement provided fertile ground for problems to surface.

“What is the role of the CEO or the director, what’s the role of the HR representative in handling these processes? There needs to be  distinction so it’s not just decided on a case-by-case basis, or  on a whim.”

Kapur says there should be a set policy and procedure followed every time, with the same person conducting an investigation.

“That way there’s less room for bias.”

HR as a support person

While it might be commonplace – and indeed necessary – for an HR representative to attend a mediation, an HR representative’s participation as the director’s support person is not appropriate.

“A support person is there to provide moral support. They really need to be a silent party, and it wouldn’t be appropriate for an HR representative to sit silently in this sort of meeting,” says Kapur. “They would need to facilitate, and that’s not what the definition of a support person is.”

In the NT council case, a fair mediation would have required the union and council to jointly instruct a third party who is removed from the investigation itself, says Kapur.

Practically, this arrangement would involve communication via email with all three parties copied in, thereby negating the need for one-on-one instruction.

“This would provide the employee with the reassurance that the person really is objective.”

The lack of impartiality in the mediation process, and the employee’s refusal to participate was “not grounds for dismissal”, says Kapur.

While it’s unclear what else could have been going on behind closed doors between the director and employee (regarding the bullying claims), on the face of it, it appears as if the director has let his personal feelings interfere with a fair and just workplace process.

“You are victimising the employee for exercising his workplace rights.”

Should HR take the blame?

In short, no.

This is because an organisation is generally held liable, rather than an individual, says Kapur.

“In any case, HR departments don’t ordinarily hold the authority to terminate employees. The case mentions that the union alleges it was the director who handed the letter to the employee,” she says.

“Irrespective of who handed it to him, the letter should be reviewed to see who signed off on it. I would be surprised if it was a HR representative.”

In addition, grounds for termination mentioned in the letter, including ‘failing to keep his car clean’ and ‘smoking in front of council offices’, are more likely to have been identified by the employee’s direct report than the HR representative, says Kapur.

“I would therefore say that it is unreasonable for the director to shift the blame onto HR, as they both play separate roles and have different responsibilities.”

At the time of publishing, the case had been adjourned as it due in front of the courts again on 28 July.

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