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Published: 18 December 2013
Author: Michael Burdess

Secret recordings with your boss - a good or bad idea?

The incidence of secretly recorded conversations between workers and bosses is on the rise. Smart phones have made it technologically easier. An industrial relations culture plagued by insecure work has made it more attractive.

But does a covert recording of a discussion with your employer offer you any protection in termination or bullying cases?

Is it even legal?

If you're thinking of secretly recording a private conversation with your supervisor or boss in order to support your version of events, think carefully. A case recently heard by the Fair Work Commission reveals why.

In his dispute with the Newland Food Company based in Queensland, a worker recorded his conversation with management because he was worried that he would be threatened with court action if he persisted with a workers compensation claim and to support his claim for redundancy payments after being demoted.

Although the Commission found that the decision to dismiss him was "capricious, ill founded, fanciful, spiteful and prejudiced", and indeed awarded him almost 26 weeks' pay, it refused to reinstate him because it found that the secret recording he had made of the conversation with his supervisor had destroyed their relationship of trust and fidelity. (Thomas v Newland Food Company Pty Ltd [2013] FWC 8220 (21 October 2013)).

The upshot is that, while the worker won almost 26 weeks' compensation, he lost the chance to get his job back. You'd like to know if he would have settled for that result before he decided to tape the conversation.

At least the Fair Work Commission accepted the recording as evidence.  There exist, however, laws under which secretly taped discussions are not only inadmissible as evidence, but illegal. In another case (Haslam v Fazche Pty Ltd T/A Integrity New Homes [2013] FWC 5593 (12 August 2013)), a Fair Work Commissioner considered the admissibility of secret recordings made of two meetings with management. The company argued that although the question of admitting the recordings was up to the Commissioner's discretion, they were illegal under the Listening and Surveillance Devices Act 1972 (South Australia), and should be excluded based on this and certain provisions of the Evidence Act 1995 (Cth), the Fair Work Act 2009 (Cth) and the common law. The Commissioner referred to the Commission not being strictly bound by the rules of evidence and procedure. However, he concluded that the recordings were "most likely obtained improperly or in contravention of Australian law"

While the judgment contained further complexities, the upshot was that the Commissioner was not persuaded to admit the evidence.

However, the Federal Court had a different view. (Wintle v RUS Cementation Mining Contractors Pty Ltd (No. 3) [2013] FCCA 694.) In that case, a Federal Circuit court judge admitted a mobile phone recording of a meeting that had inadvertently been made by a worker into evidence in a general protections claim. The judge decided that the recording was likely to assist in determining an issue concerning whether undue influence or undue pressure was exerted at the meeting, and that the desirability of admitting the recording outweighed the desirability of not admitting it, even if the recording had been obtained improperly, as a result of an impropriety or in breach of Australian law.

In these circumstances, a secretly recorded conversation with your boss on a matter in dispute may not only be thrown out of court. It might land you in trouble with the police. On the other hand, the recording may be admitted, and be an important part of your case.

What to do?

Previous industrial cases reveal that secretly taped discussions with an employer to support your version of events can at best lead to mixed results, or to a result that you don't want.

What is more, the recording may not be admitted as evidence. And if it is, it may result in you losing the right to win your job back. Even worse, it could be construed as illegal.

So take care before you tape.

If you are worried about being pressured by your boss or supervisor, or having your version of events disputed, take a work colleague with you to your meeting. Or better still, demand the presence of your union rep.

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