The secret recording has long been the staple of cop shows and gangster movies. The tension builds as the informant is “wired up” – will the wire be discovered? Will the criminals spill the beans about their dastardly plans? And most importantly, will it all happen before I’ve finished this popcorn?
Secret recordings raise different questions in an employment context, and the questions are arising more and more often. The prevalence of smartphones means that a lot of people now carry a device capable of making secret recordings in their pocket as a matter of course. The enthusiasm for making secret recordings may even go to right to the top if it is true, as has been widely reported, that a judge of the Supreme Court of Queensland used a smartphone to secretly record a conversation with the Court’s Chief Justice.
So, if Supreme Court judges are (reportedly) doing it, it must be OK to record meetings with your boss and with your co-workers and with HR, yes? Well, not really. Members of the Fair Work Commission have now considered these sorts of secret recordings on a number of occasions, and it is fair to say that secret recordings don’t impress the Fair Work Commission all that much. Some samples from the cases include descriptions such as “sneaky”, and “abhorrent to ordinary persons dealing with each other in a proper fashion”, and comments such as, “it is patently clear the respondent was less than thrilled by having its conversations secretly recorded. I don’t blame it”.
Of course, making a secret recording at work may also be illegal. Different Australian states have different laws in relation to when it is, and when it is not, illegal to secretly record a conversation. However, just because it is not a crime to make the recording doesn’t mean it’s a good idea. There are lots of things (for example, sending your boss an abusive text) which can damage the relationship of trust and confidence even though they are not illegal. Making secret recordings is pretty much the polar opposite of establishing trust.
So, how should you respond to the potential for secret recordings? You could use the gangster movie approach and only meet with your employees in a swimming pool, in the surf, or in a sauna. All of these techniques have been used in the movies to make it difficult or impossible to conceal a recording device. However, there may be occasional practical problems (trying to claim sauna fees on your expense account, for example) and if employees know that all meetings with HR in summer take place at the beach, grievance complaints might tend to spike on hot days.
Thus, there are better ways of dealing with the issue of secret recordings. Your disciplinary and grievance procedures should already stress the importance of confidentiality in resolving workplace concerns, and it is worthwhile setting out in express terms that making secret recordings undermines the confidentiality (and the integrity) of these processes.
There are, of course, excellent reasons to have a record of what is said in disciplinary meetings, which is why we take notes. Making notes of a meeting is very different to making a secret recording, because where notes are taken, each party is in the same position (and the taking of notes is done in the open). Equally, if a recording is made in the open, both parties are in the same position, and many employers take the view that the best way to prevent employees making secret recordings is for the employer to record the meeting and keep the recording as a point of reference in the case of a dispute as to what was said.
Sometimes it may be appropriate to provide the employee with a transcript, although in a lot of cases, this will be overkill. The employer should keep the original recording to itself, lest the digital file be released to the digital playground of the internet to become the latest viral sensation.
Secret recordings raise a common issue with workplace technologies, namely, that the rise of new technologies is usually closely followed by rise of new ways for employees to get themselves into trouble. How much trouble? Well, I could tell you some stories, but alas, I’m all out of popcorn.
For more on our employment law (including workplace investigation) capabilities, contact Angus Macinnis
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