What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
Advances in modern technology make it extremely easy to covertly record conversations in the workplace with managers or other employees. The Surveillance Devices Act 1999 (Vic) and other legal precedence set limitations on when recordings can be used to support an employee’s case.
Overview
In Victoria, an employee is permitted to use a recording device to record “private conversations” to which they are a party. The consent of the other parties to the conversation is not required.
However, an employee is prohibited under the Surveillance Devices Act 1999 (Vic) from knowingly communicating or publishing such private conversations. There are exceptions to this prohibition listed in section 11 of the Surveillance Devices Act 1999 (Vic):
Despite the issue of whether an employee can lawfully record and communicate a private conversation, it is ultimately a matter for the court or tribunal whether the recording will be admissible in proceedings.
Nevertheless, a series of Fair Work Commission (FWC) decisions illustrate that even if a recording of a conversation can lawfully be made and disseminated, it does not necessarily follow that such conduct will be tolerated by employers.
The Surveillance Devices Act 1999 (Vic)
The purpose of Surveillance Devices Act 1999 (Vic) is to restrict the use, communication and publication of information that is obtained through the use of surveillance devices, including audio, visual and tracking devices. This definition is inclusive of smart devices including phones and tablets. Protected information is defined in section 30D as information obtained from the use of surveillance devices.
It is prohibited under the Surveillance Devices Act 1999 (Vic) to install surveillance devices to record colleagues or employer’s private conversations. However, an employee is permitted to record conversations to which he or she is a party. It is the subsequent use of that information which is subject to prohibitions and limitations.
The Surveillance Devices Act 1999 (Vic) prohibits the communication or publication of private conversations. Section 11 prohibits you knowingly communicating or publishing the recording of your private conversations with your employer or fellow colleagues. There are exceptions to this prohibition, which include:
The protection in the Act exists for employers and employees to prevent any injustice which may arise from recordings. As it is unlikely that any individual would make incriminating statements if they knew it would be used against them at a later date, this protection must be enforced when those statements are used against the person’s interests. It is crucial that if you have recorded any private discussions that you are cautious about who you allow to listen to the recordings, as it is the disclosure of the recorded information which is prohibited under the Act. You may disclose this recorded information to your lawyer as it is for the protection of your lawful interests, and your lawyer may use this information to assist in your employment matter.
In addition, the Surveillance Devices Act 1999 (Vic) only regulates the covert recording of a private conversation. This is determined objectively. If the circumstances in which the conversation took place are such that the parties could expect it to be overheard, then there will be no statutory prohibition on it being covertly recorded. For example, if a disciplinary meeting occurs outside a building, in a lunchroom or in an office with the door open, then it will generally not be a private conversation.
Under section 30E of the Act the maximum penalty for contravention is a large fine or imprisonment of up to 2 years. An employer may also consider proceedings against an employee if the recording involves misuse of its confidential business information.
Do I fall under the “Lawful interests” exception?
The Surveillance Devices Act 1999 (Vic) will not prohibit covert recordings of a private conversation if the party making the recording can show it was necessary for the protection of his or her lawful interests. A person’s “lawful interests” are broader than his or her legal interests, but they cannot be interests that are unlawful: Violi v Berrivale Orchards (2000) 99 FCR 580.
Generally, a mere desire to have a reliable record of a conversation or to gain an advantage in potential future litigation is insufficient. However, if a party is in a serious dispute with another party and the question as to what actually was said is likely to be significant in resolving that dispute, it is arguable recording those words is necessary to protect a lawful interest: Chao v Chao [2008] NSWSC 580.
The recording must be reasonably necessary to protect lawful interests in existence at the time: Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 456. Making a recording because there is a possibility of some form of litigation in the future is not a lawful interest.
When are covert recorded conversations admissible in court or tribunal?
Generally, evidence obtained improperly or in contravention of the Surveillance Devices Act 1999 (Vic) is not inadmissible in Court or FWC proceedings. A court may still admit the covert recording if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been improperly obtained. Section 138(1) and (3) of Evidence Act 1995 (Cth) provides that relative desirability of admitting unlawfully obtained evidence is assessed with regards to such matters as: probative value, importance, seriousness of the subject matter of the proceeding and the difficulty (if any) of obtaining the evidence without impropriety. Whether the recording is admitted is dependent on the specific facts of the case.
Similarly to the Court, the FWC has discretion to allow admission of covert recordings into evidence, despite the evidence has been obtained improperly and without knowledge of the employer and in contravention of an Australian law. In Haslam v Fazche Pty Ltd t/as Integrity New Homes [2013] FWC 5593 (Haslam), the Commission concluded that while it is not bound by the rules of evidence and procedure as Courts are, it can nonetheless have regard to such rules in making its decision. In Haslam, the Commission found that because the recordings were made without the knowledge of the other parties to the conversations, they were potentially made in contravention of the applicable legislation and therefore should not be admissible as evidence.
Is making a covert recording a valid reason for dismissal?
Several cases handed down by the FWC indicate that a covert recording of private conversations either on its own (as in Thompson v John Holland Group Pty Ltd) or combined with other issues (as in Schwenke v Silcar Pty Ltd t/as Silcar Energy Solutions), constitute valid grounds for disciplinary action or in some instances dismissal.
In addition, if an employer expressly directs employees, through the publication of a policy or otherwise, to not covertly use listening or recording devices in the workplace, breach of this requirement will most likely provide a valid and lawful reason for disciplinary action, including dismissal.
It may be argued that an employee’s covert recording of a workplace conversation is a breach of the implied duty owed by the employee under the employment contract — to serve their employer honestly and in good faith. The question whether a standard of good faith should be applied generally to employment contracts has not been resolved in Australia: Royal Botanic Gardens and domain Trust v South Sydney City Council (2002) 240 CLR 45, 63 [40], 94 [156].
However, to the extent that a standard of good faith is recognised by the FWC, an employee may breach the duty if he or she makes a surreptitious or covert recording of a conversation with a manager or supervisor: Burger King Corp v Hungary Jack’s Pty Ltd (2001) 69 NSWLR 558. A serious breach may amount to serious or gross misconduct thereby justifying the employee’s summary dismissal. Whether the breach is sufficiently serious will depend primarily on why the employee made the recording. If the employee reasonably believed the recording was necessary to safeguard his or her interests, then conduct may not be sufficiently serious.