When does the covert recording of a Zoom meeting work against the person who makes it? For this employee calling foul over a vaccine mandate, it did more harm than good.

A hospital services attendant who refused to adhere to her employer’s vaccination mandate – and then illegally recorded her summary sacking over Zoom – has had her unfair dismissal claim rejected by the FWC.

The attendant, who had worked at the hospital for 22 years, refused to follow the employer’s direction that all workers had to provide evidence that they had been vaccinated against COVID-19, had made an appointment to receive a vaccination, or had a medical exemption.

Despite arguing that an exemption applied to her situation, she was consequently suspended and later sacked as she was unable to provide documentation that explained her exemption.

The video call during which the employee was notified of her termination was secretly recorded by her daughter (at the request of the employee). When the employer became aware that the conversation was recorded without permission, it deemed this to amount to serious misconduct, which the FWC agreed with when it recently assessed the employee’s unfair dismissal claim.

This isn’t the first time the FWC has deemed the covert recording of a work meeting to be cause for dismissal, irrespective of whether an employer has policies on the issue or not.

“The issue is not the fact of the recording, but the fact that it was done secretively,” says Joydeep Hor, Founder and Managing Principal of People + Culture Strategies.

For more from Hor on the ins and outs of covert recording in the workplace, jump to the second half of the article – otherwise, read on for an explanation of the case.

Worker argued for vaccination exemption

The hospital worker had been employed at the hospital since 1999. Her duties included patient meal delivery, general cleaning and transport assistance for patients within the hospital.

On 21 September 2021, in accordance with the Victorian Government’s directions, the hospital notified staff of a requirement to show evidence of vaccination by 15 October or an appointment to be vaccinated by 29 October.

Having not supplied the required evidence by the deadline, the worker was suspended on full pay.

Following the suspension, the hospital began investigating allegations that she had “failed to comply with a lawful and reasonable direction”, according to the FWC decision, and expressed a concern that she “did not have the capacity to perform the inherent requirements of her job”.

“The secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction.” – Deputy President Alan Colman

The hospital worker contended that her employer had not sufficiently addressed her concern that an exemption applied to her.

She argued that the state’s public health sector enterprise agreement required the hospital to take reasonable steps to investigate an employee’s response to allegations about performance or conduct.

After a short delay caused by the hospital responding to numerous other cases of employees not providing evidence of their vaccination status, the employee attended a Zoom meeting with her senior manager and the hospital’s group employee relations manager on 2 December, which ended with the worker being notified that her employment was being terminated.

Secret recording harmed unfair dismissal claim

The hospital learned of the recording from references to a transcript of the meeting included in the former employee’s unfair dismissal (F2) application – and argued that the recording constituted a valid reason for dismissal in addition to the rejection of vaccination directions.

In his assessment of the claim, Deputy President Alan Colman noted that “the worker’s decision to covertly record her summary sacking via Zoom added to the list of reasons why it should be upheld”.

“The secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction,” he stated.

The secret recording amounted to serious misconduct, he deemed, despite the fact she had an otherwise unremarkable behavioural record.

Hor says a single act of misconduct is often enough to warrant termination regardless of an employee’s unblemished record or tenure.

“It is always the challenge in an employment context of what weight you give to someone’s longevity and record in circumstances where, by definition, misconduct is misconduct,” he says.

“The law recognises that an employer has a number of rights, as they ultimately pay the employee to work for that organisation. The principles of misconduct recognise that if someone has done something wrong, it would be unreasonable to expect the employee to continue to pay that person.”

Deputy Colman concluded that: “[The employee] had worked for [the hospital] for over twenty years and had a good employment record. She was ready and willing to work. But she was unable to work… as a consequence of the decisions she had made.”

He concluded that the employee was “entitled to her opinions” but the employer “did not act hastily” when suspending and dismissing her.

Crossing the line

Does this mean that every time an employer records a call with their boss it’s tantamount to misconduct and therefore cause for dismissal? Not necessarily, says Hor.

“An employer wouldn’t ever refuse an employee’s request to take notes in a meeting,” he says. “And often, in the context of a performance management discussion, an employer will confirm what was discussed in writing afterwards in the form of an email or a letter.”

By the same token, the recording of a video call could constitute ‘notetaking’ of a sort, if mutually agreed in advance.

“What it shows is a clear interest in the employer and the employee aligning on what was discussed in a particular meeting.”

There are often cultural issues at play when secret recordings take place, such as a breakdown of trust. Or sometimes, it comes down to the type of person you’re dealing with.

“It’s not uncommon for secret recordings to happen in an environment where employees are increasingly aware of their rights and remedies that are available to them if they are being performance managed, for example,” says Hor.

“In the majority of instances, employers would not be aware that it’s happening because the need for the employee to disclose that something was recorded probably doesn’t arise often. So the fact that it’s been recognised and treated as a tantamount to misconduct is interesting, not because I think it isn’t misconduct, but because there is potentially a disconnect between treating it as misconduct and the extent to which it actually happens.”

Hor says an employer installing cameras to monitor conduct within the workplace is another example of when the recording of individuals can be justified.

“Cameras are understandable; they’re needed for reasons of security and protection,” he says. “The issue isn’t whether you have the right to have cameras in your workplace, it’s if you have cameras but haven’t told anyone they’re there.”

Likewise, it’s in the interest of employer and employee alike to ensure the accurate recollection of meetings and ideas at both virtual and in-person meetings, he says, but only if done so without subterfuge.

The case also touches on the value of having a third party or support person present in important meetings between employee and employer – such a family member or colleague – both to witness proceedings and provide support to the worker as required.

“Employers are generally advised, particularly with more junior or non-executive staff, to allow those staff members to have a support person present,” says Hor. “Employers are certainly encouraged to have more than one person present for these discussions as well.”

Read HRM’s guide to managing support people in meetings here.

Although, in this case, the actions of the employee and their support person constituted serious misconduct, the latter’s function is normally more of an assistance than a burden.

“It’s partially to ensure that someone independent can validate what the primary person has said did or didn’t happen in a meeting,” he says.

The intended end point is a meeting made more productive, and an employer and employee who move forward aligned on messaging and intent.

Few things can be more challenging than handling a serious complaint of misconduct in the workplace. AHRI’s workplace misconduct short course can help HR better manage allegations of misconduct when they arise. Sign up for the next course on 16 June 2022.