With the widespread use of smart phones, cases indicate that employees are progressively assuming the role of the detective by secretly recording not only performance management or disciplinary meetings but also informal conversations with their managers. These conversations are typically taped in an attempt to use the recordings as evidence in subsequent legal proceedings or at least as leverage in negotiations. In this new media age, should employers just assume that their employees, in employment-related discussions, are recording them?

Smartphone spy

A well-publicised incident in the US illustrates the pitfalls of not making this assumption. LeBron, an employee working at a bank, attended a performance review, knowing it could be disastrous. He had already been informed that there were serious concerns about his performance. Like most of the employees of the bank, LeBron had a smart phone, which had a built-in recording application (but these are also available for less than $1.99).

As LeBron walked into the meeting room, he pressed the record button on his Blackberry. Even if his boss had looked at LeBron’s Blackberry, it would not have been obvious that LeBron was recording the conversation. During the course of the meeting, LeBron’s boss made comments such as “those dreads in your hair make you look like a thug” and “we’d love you to speak proper English and not the jive you speak in the office.”

LeBron left the meeting with a huge smile on his face that baffled his boss. But the boss soon discovered the reason for LeBron’s high spirits. Later that day, he received a call from the bank’s lawyer. LeBron had secretly recorded their conversation and emailed the recording to his lawyer, who in turn sent it to the bank’s lawyer and threatened to release the recording to the local media. Instead of risking adverse publicity and a potential lawsuit, the bank hastily agreed to a six-figure settlement and LeBron’s swift departure.

In Australia

The above scenario took place in the US in 2011. These issues have now arrived on our shores. Several recent cases have held that secret recordings made by employees may be admissible as evidence even when they have been improperly or unlawfully obtained.

Nationally, telephone conversations may not be recorded: the Telecommunications (Interception and Access) Act 1979 (Cth) prohibits the interception of communication passing over a telecommunications system without the knowledge of the person making the communication.

The states and territories have their own legislation governing the recording of face-to- face conversations. In Victoria, Queensland and the Northern Territory, it is not unlawful for a person to record a private conversation to which they are a party. In Victoria, the communication or publication of the recording is prohibited unless an exception applies. In the ACT, New South Wales, Tasmania and Western Australia, it is unlawful to record a private conversation to which the person is a party, unless an exception applies, such as the express or implied consent of the other parties to the conversation.

The Fair Work Commission is not bound by the rules of evidence and has a wide discretion in relation to the admissibility of evidence. In Haslam v Fazche Pty Ltd (2013) and Kharb v Eastfield Pty Ltd (2013), it was considered whether the recording(s) an employee made without the employer’s consent could be admitted as evidence. In Haslam, the secret recordings were not allowed to be admitted. In Kharb, the employer did not object to its admission and it was admitted. Ultimately, the recording was found to be unhelpful to the employee’s case.

In Schwenke v Silcar Pty Ltd (2013) and Thomas v Newland Food Company (2013), it was concluded that secretly recording a conversation was conduct that breached an employee’s duty of good faith or fidelity.

It was held to be valid grounds for termination in one case and justified refusal of re-instatement in the other. Nevertheless, in Schwenke, it was noted that there may be some circumstances, such as one-on-one encounters in relation to discrimination, harassment or bullying, where an employee will be justified in secretly recording workplace conversations.

Lessons for employers

Cases show that recordings may be admissible evidence in a court proceeding. If not used in court, they may be a form of entrapment that is intended to give employees greater bargaining power.

Employers should err on the side of caution and assume that they are being recorded by employees and conduct their discussions in a manner that would not adversely impact the company. Employers should consider training their managers to be transparent and fair in their communications with employees. Best practice is to make note taking permissible in meetings. But, in the smart phone era, is there much difference between both parties writing notes and both parties openly recording meetings on their phones?