Secretly Recording Work Colleagues
By Renee Karakinos, Law Graduate, MST Lawyers
Introduction
In the recent case of Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878, the Fair Work Commission deliberated on the secret recording of work colleagues. Deputy President Colman concluded that secretly recording workplace conversations with colleagues is “highly inappropriate regardless of whether it may also constitute a criminal offence in the relevant jurisdiction. The reason it is inappropriate is as it is unfair to those who are secretly recorded.”
Background
The decision concerned an application made by Mr Tawanda Gazikwa for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Gadzikwa commenced employment with the Australian Government Department of Human Services (DHS) on 13 January 2014. In June 2016, Mr Gazikwa commenced a period of unpaid sick leave associated with a mental health condition. He did not return to work, save for three days in September 2016.
In late 2017, DHS advised Mr Gadzikwa that his authorised unpaid sick leave would end in January 2018 and that he would need to provide DHS with a medical clearance before returning to work.
On 23 February 2018, Mr Gadzikwa provided DHS with a two-line medical certificate from his doctor stating that he was able to return to work on modified duties. DHS did not consider to be a satisfactory medical clearance, and he was subsequently dismissed.
In considering the overall fairness of the dismissal, DP Colman took into account Mr Gadzikwa’s inappropriate secret recordings of conversations with co-workers.
Legal Framework
Section 6 of the Surveillance Devices Act 1999 (Vic) prohibits a person from using a listening device to record a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.
Each State and Territory has legislation on surveillance and listening devices.
Note that publication or communication of any recording of a private conversation is prohibited in all jurisdictions. Save for in NSW; there is an exception for publication or communication made in the course of legal proceedings.
MST Lawyers has addressed the legality of secretly recording conversations in a previous article. Please click here to access.
Mr Gadzikwa’s Secret Recordings Of Colleagues
Mr Gadzikwa acknowledged that he had a practice of covertly recording his conversations with colleagues and thought that he was justified in making covert recordings to ‘protect’ himself.
DHS did not contend that Mr Gadzikwa had breached the Surveillance Devices Act 1999 (Vic) and it did not rely on his recordings of conversations as a ground for dismissal. It submitted rather that his conduct in secretly recording colleagues was inappropriate.
DP Colman concluded in paragraph 83 of the case that where colleagues are:
“…unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view.” The “surreptitious recorder“, however, “can do all of these things, and unfairly put himself at an advantage“.
Notwithstanding that it was not a separate valid reason for dismissal in this case, DP Colman took into account Mr Gadzikwa’s inappropriate secret recordings of conversations with co-workers to determine the overall fairness of the dismissal. DP Colman acknowledged that, in a different setting, it would have been open for him to find this conduct to constitute a separate valid reason for dismissal.
Overall, DP Colman concluded that the dismissal of Mr Gadzikwa was not disproportionate to the relevant conduct and did not render the dismissal harsh, unjust or unreasonable. Accordingly, his dismissal was not unfair.
Secret Recordings In Preceding Cases
In 2017, MST Lawyers acted in the FWC case, Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales [2017] FWC 4916, which involved an employee covertly recording conversations with his employer. The covert recording of these conversations was found to be inappropriate and fall within the meaning of misconduct. Commissioner Platt acknowledged that:
“It is a factor which weighs against a finding that the dismissal was harsh, unjust or unreasonable.”
As a result of the employee’s misconduct in covertly recording the telephone conversations with his employers, the FWC discounted the amount awarded to the employee by 20%.
This approach was applied by the FWC in the case of Evered v AHG Services (Vic) Pty Ltd T/A Coffey Ford [2013] FWC 9609, albeit that the discount in that case was assessed at 15%.
Furthermore, Federal Court Justice Marshall expressed “grave concerns” over the use of covert-evidence gathering techniques in the case of Director of the Fair Work Building Inspectorate v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union VID 77/2013. The recorded conversations arose from a dispute between the AMWU and City West Water culminating in a picket which the FWBI alleges amount to unlawful coercion under the Act. Click here to read MST Lawyers’ review of this decision.
Impact On Employers
The above cases serve as warning bells to all employers and employees who are considering the use of secret recordings in the workplace.
Where an individual believes that the recording of a conversation is appropriate, the other participants should be advised in advance that the conversation is to be recorded, so that any objections can be voiced.
Reference should also be made to the relevant state or territory surveillance or listening device legislation before secretly recording any meeting or conversation in the workplace.
For more information, please contact the MST Lawyers’ Employment Law team by email or call +61 3 8540 0229.
