Recording Conversations At Work (Qld)

There are a number of circumstances when a person may wish to record a conversation at work. For instance, if someone is experiencing workplace bullying or sexual harassment, they may wish to have proof of what occurred for a workplace complaint or litigation proceeding. From a technological point of view, it is easier than ever to surreptitiously record conversations using a mobile telephone or tablet computer. This article explains the law relating to recording conversations at work and answers the following questions:

• Is it legal to record conversations at work in Queensland?
• Is it grounds for dismissal?
• Can the recordings be used in workplace investigations, during a disciplinary action or in a court or tribunal case?

Recording Conversations At Work

Recent cases have shown that many employees are covertly making audio recordings at work without the knowledge and consent of other parties. Most commonly these recordings are made because an employee is unhappy with some aspect of their employment. The recordings often later surface during an unfair dismissal, workplace bullying or sexual harassment case.

Is Recording Conversations At Work Legal In Queensland?

The law on recording conversations differs across jurisdictions in Australia. For instance, in Queensland, the Invasion of Privacy Act 1971 states that a person can record a private face-to-face conversation without consent as long as they are a party to the conservation. However, recordings of private conversations can only be published or disseminated with the consent of the parties, during a legal proceeding, if revealing the conversation is in the public interest, or if it is reasonable in all the circumstances to disclose the conversation.

Telephone And Video Conversations

Regardless of the state or territory, every jurisdiction in Australia is governed by the Telecommunications (Interception and Access) Act 1979. Under that legislation, it is a federal offence to record or intercept a conversation received from a telecommunication system (including telephone calls and video conferencing) even if the parties are aware of the recording. As such, it is illegal to record a telephone or video conference at work even if the person recording is a party to the conversation.

Given that an increasing number of employees are working from home and teleconferencing into meetings with co-workers and employers, this legislation may now be due for review.

Is Recording Conversations At Work Grounds For Dismissal?

While it is not illegal to covertly record face-to-face conversations at work in Queensland, it is a valid reason for disciplinary action and outright dismissal. The Fair Work Commission has established that secretly recording conversations at work undermines the confidence and trust between employer and employee and “strikes at the heart of the employment relationship”.

Covertly recording at work has been labelled an “extreme impropriety” and an example of serious misconduct that is grounds for dismissal. For instance, in the case of Chandler v Bed Bath N’ Table Pty Ltd [2020], the Commission found that while there were grounds to find that there had been unfair dismissal, the existence of a recording made by the employee (which came to light during the proceeding) was sufficient reason for the company to avoid a reinstatement order because of the loss of confidence and trust between the parties.

Company Policies

Many employees are unaware that recording conversations at work is serious misconduct, and do so for later reference or as a memory aid. It is therefore best for a company to implement policies and make them clear to all employees. The company policy should be communicated to new employees during induction or training, and reiterated in technology use policies.

In some instances, recording meetings or conversations at work is necessary or helpful for employees. In that case, the company can institute a recording agenda and after notifying their employees, record the meetings and make a copy available to all participants.

Use Of Covert Recordings In Workplace Investigations

Sometimes an employee has made a covert recording that supports the position of the employer and offers it for use during a workplace investigation. It is generally up to the employer to decide whether it is appropriate in the particular instance to use the recording as evidence.

The first obstacle to the use of this type of evidence is whether it was legally obtained. As it is legal to record in-person conversations in Queensland, this is an important first factor for consideration. The second question is whether the benefit of using the evidence outweighs the risk of effectively endorsing the employee’s misconduct in secretly recording the conversation in the first place.

Courts and tribunals that have considered this issue have weighed the importance and probative value of the evidence obtained from covert recordings, the subject matter, the intent behind the recording and the gravity of the misconduct in making the recording.  An employer who decides to use covert recordings should document the decision-making process to ensure that it is defensible in case of future litigation. A good approach when deciding whether to use the evidence is to follow the precedent set by courts and tribunals.

While in Queensland it is legally permissible to record certain conversations, the reality is that recording conversations at work may constitute grounds for termination. For practical assistance or further advice on covert recordings at work, or managing employee misconduct or workplace investigations, please contact the employment law solicitors at Armstrong Legal on 1300 038 223.