Should I record my employer at a meeting?
Workers facing disciplinary action might be tempted to tape record their employer at a meeting to properly record the events of the meeting.
They might also distrust their employer’s record of the meeting, or simply, they did not have enough time to bring a support person with them to the meeting.
Rapid advancements in technology have made it all too convenient and easy to secretly record meetings.
The recent FWC the case of Tawanda Gadzikwa v Australian Government Department of Human Services ¹ explored this very issue.
Mr Gadzikwa’s employment was terminated due to unexplained and unauthorised absences from work following a workplace injury. He also secretly recorded meetings conversations with his colleagues.
Colman C held that the ” secret recording of conversations with co workers was highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction … because it is unfair to those who are secretly recorded and they are unaware that the record of their exact words is made (having) no opportunity to choose their words carefully and be guarded about revealing confidences or sensitive information”.² The Commissioner concluded that generally, the secret recording of conversations with colleagues in the workplace is to be deprecated and took this matter into account when considering the overall fairness of the dismissal. Mr Gadzikwa was ultimately unsuccessful with his claim.
Gadzikwa’s case is consistent with previous cases where the practice of covert recording by employees, was regarded as inappropriate.
In Trevor Thomas v Newland Food Company Pty Ltd,³ DP Sams found that even though a secret tape recording and publication of the recording by the Applicant was lawful in Queensland, the “secret recordings were well outside the normal working environment and contrary to the well understood necessity for trust and fidelity in a relationship between an employee and employer.” The Employee was denied reinstatement for this reason.
In Schwenke v Silcar Energy Solutions,4 Cloghan C found that even though the recording in that case was lawful, the secret tape recording constituted a valid reason to terminate Mr Schwenke’s employment, together with other performance related matters.
Can an employee request and insist on an open recording of a meeting?
An employee should resist the temptation to covertly record their employers. There are more acceptable ways to record the events at a meeting even if those methods may well have been long surpassed by technology, a point made by Bacon C in the case of a I.Curr v ATO.5
In that case, Bacon C stated that he was a strong supporter of the taping or video recording of disciplinary and counselling meetings citing I.W. McLaughlin v Australia Meats Holdings.6 In Mclaughlin’s case, it was recognised that in most unfair dismissal proceedings, “much of the parties’ time and money is spent contesting who said what to whom and when it was said. Written notes are produced and contested. Days of oral witness evidence is taken. As we approach the year 2000 (as it then was) a time when technology provides all aspects of working life, it is beyond me that when counselling employees or conducting performance or disciplinary conferences the parties somehow feel compelled to rely on the same basic technology that has been available for over 2000 years.”
Bacon C agreed with the employee about why the tape record of a particular meeting was reasonable, stating that “nobody has yet established to (his) satisfaction one credible reason against the taping of significant meetings” and “one could only imagine the chaos that would attend appeal proceedings if the Commission proceedings at first instance were only recorded by note taking of the parties.”7
Bacon C noted the right of individuals within the workplace to refuse to be taped but found that the circumstances and context of the meeting relevant (to whether the practice of recording meetings was appropriate). Whilst finding the employee in that case had some good reasons to record the meeting, Bacon C concluded it was still “inappropriate and discourteous to tape record a meeting without knowledgeable participants” and further, the employee’s conduct in secretly recording the meeting after his employer refused, was inappropriate.
If an employee intends to record a meeting, it may be reasonable for a worker to announce their intention prior to the meeting and obviously if there is consent all around, then there may not be any issue in leading this material in evidence.
However workers enter unsafe territory if they refuse to meet with their employer unless they are allowed to record the meeting because their employer might argue that they have failed to follow a lawful and reasonable direction.
This begs the question, why is it permissible for an employer to rely on a covert record of an employee’s conduct (even if there is some other legitimate reason why the recording was undertaken in the first place such as protecting a resident in an aged care facility) yet it is generally considered unfavourable for an employee to covertly record an employer at a meeting, which meeting may directly affect their livelihood?
This is not to say that we condone the practice of covert recording in the workplace.
Should the focus on employees’ conduct in future cases be not about whether the recording is covert or overt (although clearly overt recordings are less sanctionable), but on the surrounding circumstances about why a recording was made? For instance, an employee’s conduct ought not be regarded unfavourably when they record an employer engaging in a pattern of poor workplace practice (and not so as to entrap their employer); or when there has been an ignored but persistent threat to health and safety in the workplace; or even when a disciplinary meeting has been hastily arranged by the employer and the employee has not any time to organise a support person or note taker to accompany them.
Workers facing an investigation in the workplace, should always obtain advice about whether recording any meeting, or publishing a recording is lawful and reasonable in the circumstances of their case, so that they do not prejudice their position in any later legal proceedings.
1. FWC 4878.
2.Ibid, para 83.
3. FWC 8220
4.  FWC 4513.
5.[PR953053] [8 November 2004]
6. Print P9625
7 PR953053 at para 184.