A recent spate of cases indicate it is becoming more common for employees to record conversations in the workplace, and later seek to rely on them in a legal proceeding against their former employer. A 2015 Federal Circuit Court decision examined the circumstances in which these types of recordings are obtained, and whether they should be admitted as evidence in court.

Unfortunately, recordings of private workplace conversations are often made covertly and without consent. Surprisingly, in limited circumstances, the courts or the Fair Work Commission may allow these recordings to be used by employees as evidence in legal proceedings, even when they have been improperly or unlawfully obtained.

Australian surveillance laws

There are different rules in each Australian state and territory in relation to recording private conversations. Only NSW and the ACT have legislation specifically targeted to recordings in the workplace (the Workplace Surveillance Act 2005 and the Workplace Privacy Act 2011).

The other states and territories have legislation that applies broadly to use of surveillance devices, including listening devices that can record private conversations. Recording private conversations is subject to the following restrictions:

Jurisdiction Restrictions

ACT, South Australia and Tasmania – It is unlawful for employees to record private conversations unless a principal party to the conversation consents and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that party.

Queensland and Victoria – It is unlawful to record a private conversation unless the employee is a party to the conversation. However, the legislation prohibits communication of or publishing a record or report of the recorded conversation unless this is done to protect the lawful interests of the person making it.

New South Wales, Northern Territory and Western Australia – It is unlawful for employees to record private conversations (even if the employee is a party to the conversation) without the consent of each of the parties to the conversation.

Can covert recordings be used in legal proceedings?

Generally, even if evidence is obtained improperly or in contravention of an Australian law, it may still be admissible in legal proceedings. Under uniform evidence legislation, courts are given a discretion to allow unlawfully obtained evidence to be used in a proceeding. This is subject to the court being satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained (in the circumstances that the evidence was improperly or unlawfully obtained).

In Ogbonna v CTI Logistics Ltd & Ors¹, the Federal Circuit Court found that the desirability of admitting the covert recording did not outweigh the undesirability of admitting it. In particular, the Court took the following matters into consideration:

• the recording was made contrary to the Surveillance Devices Act 1998 (WA);
• the evidence was available through oral witnesses; and
• the recording did not assist in the determination of the issue in the proceeding (racial discrimination).

Lessons for employers

Although the covert recording was not permitted in the case above, it serves as a reminder that you should take steps to prevent employees from covertly recording private conversations in your workplace.

In particular, you should:

• require employees to switch off their mobile phones in confidential meetings, such as disciplinary meetings or discussions that may result in termination of employment;
• take written records of important workplace meetings, and allow employees to do the same; and
• update workplace policies to ensure consistency with relevant legislation.

Footnote

¹Ogbonna v CTI Logistics Ltd & Ors (No.2) [2015] FCCA 2318

Article by Lauren Drummond Holding Redlich