The FWC recently overruled an unfair dismissal claim when it came to light that the employee had secretly recorded a conversation at work – a fact revealed after the dismissal took place. What can HR learn from this ruling?

The Fair Work Commission (FWC) recently rejected an unfair dismissal claim from an employee after it discovered she had secretly recorded a conversation at her former workplace without her employer’s knowledge.

In the ruling, the FWC agreed that the employer’s deliberate refusal to engage with the plaintiff and communicate a change in working hours just days before her termination was unfair. 

However, her attempt to submit the secret recording in her claim proved decisive in swinging the FWC’s final judgement.

“The employee has scored an own goal by seeking to tender the recording, no doubt in the expectation that it would be admitted into evidence, and it would support her position,” says Michael Byrnes, Partner at law firm Swaab. 

“But the Commission rejected its tender. And the fact that she had made the secret recording was considered to be a valid reason for the termination of employment.”

The case serves as a reminder of the ill-advised use of secret recordings as a mechanism for record-keeping, which is likely to backfire on the individual, as this previous HRM article outlines. 

Commission found a betrayal of trust

The plaintiff, a former casual employee at a holiday park, covertly recorded a conversation at the park office after attempts to contact the employer regarding a reduction in her work hours resulted in ignored messages and a breakdown in communication.

However, this recording was only made known through the unfair dismissal claim, where she, in effect, “dug her own grave” by bringing the recording forward as evidence, says Brynes.

The FWC regarded the act as serious misconduct, stating that the recording undermined the trust essential to the employment relationship and represented a substantial “betrayal of trust”.

It found the employee’s conduct ultimately outweighed any previous factors which may have supported her unfair dismissal claim, and provided the employer with a “sound, defensible and well-founded” basis for termination – even if the employer was not aware of the recording at the time. 

“Conduct during the employment, of which the employer was not aware of prior to termination, can still be relied upon or taken into account when determining whether or not there’s a valid reason for termination in an unfair dismissal case.”

What if you discover an employee has secretly recorded a conversation?

Employees may feel tempted to create an indisputable record of a difficult conversation to safeguard their workplace rights, particularly if there’s been a breakdown in relationships or a loss in trust.

He cites situations where an employee feels like they are at risk of physical or mental harm in the workplace – for example, if a manager or colleague is physically threatening them in a way that poses an imminent concern for their welfare.

Critically, these exceptions don’t pertain to “run-of-the-mill” performance discussions or even termination discussions. 

“When employees start secretly or covertly recording conversations, that is a massive red flag.” – Michael Byrnes, Partner, Swaab

So what should you do if you discover an employee may have covertly recorded a conversation between yourself or colleagues?

As with any allegation of serious misconduct, HR practitioners need to conduct a proper investigation into the behaviour and follow a procedurally fair process. 

While this process will look different in specific businesses, here are a few general tips that HR can apply: 

• If a complaint has been raised, ensure that investigations are undertaken in a fair manner by an impartial investigator within a reasonable timeframe, and are clearly consistent with existing complaint handling procedures. This generally involves engaging with the complainant, collating evidence and engaging with the respondent. 
• Take notes during or following important meetings with the involved parties, and comprehensively document the process you’ve undertaken.
• An incident may also raise the question of whether it is necessary to create a policy specifically around secret recordings, or to add this as an addendum to any relevant policies such as those pertaining to bullying, harassment or performance management.
• Following the collation of findings, it is recommended that an independent and unbiased decision-maker makes the final call for any outcomes, whether that’s mediation or termination of employment. This will ensure clarity and fairness around any final decisions, and minimise the risk of future unfair dismissal or adverse action claims.

Learn more about how to conduct best-practice workplace investigations and remain legally compliant. 

A breakdown in culture

Beyond potentially amounting to serious misconduct, a secret recording is also a glaring signal of deeper cultural issues within an organisation that employers should take immediate notice of.

“When employees start secretly or covertly recording conversations, that is a massive red flag,” says Byrnes. “It is considered to be corrosive to the employment relationship and inconsistent with an obligation of trust and confidence that the employee has to the employer.”

If an employee feels the need to collect insurance to protect themselves in conversations with their manager or colleagues, it’s important for HR to understand the root cause of their behaviour.

Gaining a deeper look into the underlying reason should be a priority throughout any relevant workplace investigations, as it could be a sign of serious conflict in a team, or perhaps a sign that the individual is going through personal issues. 

Conducting these investigations with an open mind should help employers get to the bottom of any mounting issues that could spell trouble down the line, and ensure they are also upholding their duties of cultivating a safe and respectful work environment.

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