Typical Question
I recorded my termination meeting because I was fearful that the employer would say that I resigned and was not sacked if I later brought an unfair dismissal claim. Can I use the recording in court?
Short Answer
The Surveillance Devices Act 1999 and other legal precedence sets limitations on what recordings can be used to support your case. This is largely because individuals would not make incriminating statements if they were aware they were being recorded. However, everyone’s case is different and there are some circumstances where recordings can be used to support your case.
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Long Answer
You may have been fearful that your employer would manipulate the outcome of your meetings to better their case should you bring legal action against them to enforce your employment rights. You may have recorded the conversation to protect yourself in the future against any adverse action from your employer. If you have been worried for some time about your employer’s unlawful conduct, you may even have established a dossier of recordings which you intend to use to establish your employer’s wrongdoing and assist any future claim which you may make.
However there is legislation in place which limits your ability to use those recordings in legal proceedings. You may have complied with the law when you covertly recorded the conversations, however this may be of limited use in defending your employment rights if you cannot use it in a court or tribunal against your employer.
Surveillance Devices Act 1999 (Vic)
The purpose of the Surveillance Devices Act 1999 (Vic) is to restrict the use, communication and publication of information that is obtained through the use of surveillance devices. Such devices can include audio, visual and tracking devices. Permission may be granted under the Act to covertly record conversations between individuals, however these are usually granted to Police for the investigation of criminal offences.
Protected information is defined in section 30D as information obtained from the use of surveillance devices. If you seek to bring your recording to the attention of a court or tribunal in which you have brought your matter, you are using and publishing the protected information. It is the use of the information for tendering the evidence in the court or tribunal which attracts prohibitions and limitations. The protection 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 that person’s interests.
You are not permitted to install surveillance devices if you intend to record your fellow colleagues or employers’ private conversations. However you are permitted to record conversations to which you are a party. It is how you use that information which is subject to prohibitions and limitations.
The Act prohibits the communication or publication of private conversations or activities. Section 11 prohibits you knowingly communicating or publishing the recording of your private conversations with your employer which you have obtained through the use of a surveillance device. There are exceptions to this prohibition which include –
– A communication made with the express or implied consent of each party to the private conversation
– A communication that is no more than is reasonably necessary
– In the public interest; or
– For the protection of the lawful interests of the person making it; or
– A communication in the course of legal or disciplinary proceedings.
If you asked your employer for consent to record any meetings held between you and it was given, it is unlikely that your employer would have made any incriminating statements. It is crucial that if you have recorded any private discussions that you are very cautious about who you allow to listen to the recordings as it is the disclosure of the recorded information which is prohibited. 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.
This Act should not be taken lightly as you may be found to have committed an offence if you publish the information which you have secretly obtained. If you intentionally or recklessly publish or use the protected information which you have obtained through your recordings, you may be found guilty of an offence and be liable for imprisonment of up to 2 years under section 30E.Your employer may consider proceedings against you if your recording involves the misuse of its confidential business information, hence any use of your recorded information may come with serious consequences.
In addition to regulating the use of recordings between you and your employer, the Act provides specific protection for your workplace privacy under Part 2A. Section 9B prohibits your employer from knowingly installing or using optical and listening surveillance devices to observe, listen, record or monitor your activities or conversations in bathrooms and private areas. Section 9C prohibits you from communicating or publishing an activity or conversation recorded under section 9B. Your employer cannot record you in private areas such as bathrooms or change rooms; however this does not prohibit your employer from monitoring you in more public areas such as your shop floor or working area.
If you record conversations to which you are a party, you must be cautious not to publish or disclose it to anyone who is not your lawyer. You are prohibited from using it for any reason, except for the protection of your own lawful interests or in a legal matter. However there are additional requirements under the Evidence Act 2008 (Vic) which may need to be complied with for tendering evidence, depending on which court or tribunal you seek to use the recording in. You should bring any recorded information to your lawyer’s attention, but its use as evidence in courts and tribunals should be a decision made carefully and with ample consideration as to the consequences.