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This conversation is off the record . . . I hope!

Release Date

19 November 2013

Employees may attempt to record conversations and interviews in an attempt to prove that they were bullied, subjected to adverse action or not granted procedural fairness when disputes arise (eg when they fear possible dismissal or disciplinary action). Managers may attempt recording to ‘cover their backside’.
An increasingly common scenario is that an employee may request that he/she either tape an interview or record it on a smartphone. Managers who have to conduct the interviews may make similar requests.
Check if you have a policy
The first step is to consult any relevant HR policies and employment agreements to check whether they allow recording, and in what circumstances. If they do allow it, advise the employee and/or manager and ensure suitable equipment is available to properly record the interview.
If a policy or agreement prohibits recording, state clearly that it is not allowed. However, the latter may not stop someone from secretly recording the interview — see the discussion below. For this reason, it will be difficult to enforce a blanket ban on recording meetings, and even if one exists it does not guarantee that the ‘evidence’ will not be admissible later — again, see below.
The recommended practice is to advise the employee that he/she is entitled to have a support person attend the interview and take notes, but not record the proceedings. After the interview, a summary of what happened should be prepared for all parties to check.
An HR policy that covers the recording of interviews should clearly set out any situations where recording is prohibited, and state the consequences of breaching the policy. The policy should also comply with the requirements of any relevant legislation covering recording of events at the workplace — see below.
What the law says
The federal Telecommunications (Interception and Access) Act 1979 prohibits the interception of a communication via a telecommunications system without the knowledge of the person who made that communication. Each state and territory has legislation that covers the recording of conversations; for example, the Workplace Surveillance Act 2005 and Surveillance Devices Act 2007 in New South Wales. Provisions of each Act vary, and it is important in each case to check what is the definition of a ‘private conversation’ and whether permission to record a conversation is required.
Whether or not permission to record is required, legislation generally prohibits public communication of a private conversation unless it is disclosed in the course of legal or disciplinary proceedings, and disclosure is necessary to protect a party’s lawful interests. A court or tribunal presented with this ‘evidence’ then has to determine whether it is admissible.
Is a secret recording admissible evidence?
Even if a recording were made in breach of legislation or of an organisational policy, that does not guarantee it will be inadmissible to legal proceedings, because courts and tribunals have discretion to allow it. Basically, the party seeking to have the ‘evidence’ admitted has to satisfy the court/tribunal that the desirability of admitting it outweighs the undesirability of doing so. For example, the Fair Work Commission is not strictly bound by the rules of evidence and has the discretion to inform itself as it sees fit.
The federal Evidence Act 1995 sets out the factors that courts and tribunals should consider in these situations. They include:
  • the probative value (ie extent of ‘proof’) provided by the material
  • whether it relates to key and contested matters in the dispute
  • the extent of gravity of the breach committed by the party who made the recording
  • whether it contained material that was scandalous or embarrassing for third parties.
If the legal proceedings would give the employee an opportunity to cross-examine the employer’s witnesses, a recording would be unlikely to be admitted. However, if it provided the most accurate account of what was said and the tone used to say it — for example, in cases where bullying, duress or pressure on an employee is alleged — it is more likely to be admitted.
Another relevant factor may be whether it appeared that the party who knew a conversation was being recorded constructed the conversation so as to ‘set up’ the other party who was unaware of the recording.
What if the employer secretly records a conversation?
Sometimes a manager interviewing an employee or union representative may record the interview without the latter’s knowledge. As well as being potentially illegal and/or in breach of organisational policy (see above), this action is likely to reflect badly on the employer’s credibility and be detrimental to the employer’s defence.
If an employer or manager intends to record an interview or meeting, the employee and his/her representative (if any) must be notified of this up-front.

What if an employee seeks permission to record?

A blanket ban by employers on recording interviews is not recommended, because it is likely to encourage further unauthorised recordings; and, as noted above, these may still be admissible evidence. Conversely, if an employee seeks permission to record the interview and the employer does not specifically object, it is likely the employer will have given implied consent to recording and cannot contest admissibility later.
When deciding whether to grant permission to record, the employer should consider the following factors:
  • level of experience of the manager conducting the interview
  • whether the employee will have a support person present
  • whether the manager will have an assistant (eg a secretary) present
  • the potential consequences of the meeting for both parties
  • the proposed method of recording, and how secure it will be
  • the potential consequences if recording is refused (eg the employee may refuse to participate in the process any further and prevent possible resolution of a dispute without legal recourse)
  • whether recording would assist the employer as well as the employee.
The employer could consider developing a policy that specifically addresses the issue of recording interviews and conversations. If so, it should:
  • comply with the legislation noted above, plus any relevant agreements
  • be communicated to all employees, and specifically mentioned again before meetings occur
  • allow for case-by-case discretion according to circumstances rather than impose a blanket ban or give blanket permission
  • clearly specify any bans or restrictions
  • set out the consequences for managers or employees who breach it.

Conclusion: an issue likely to escalate

Developments in technology mean that secret recording or filming of conversations at the workplace is likely to increase regardless of employers’ policies. The employer will often be unable to prevent it; so, it is preferable to have a discretionary policy that aims to regulate the practice fairly and legally. An employer also needs to know when and how to object to the use of recordings, should matters escalate (eg into legal proceedings).

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Source: Source: Mike Toten is an HR Consultant who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. He has been a regular contributor to WorkplaceInfo for a number of years.

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