All too often workplace disputes arise out of conversations or meetings where the participants have wildly different versions of events. The parties then end up before a court or the Fair Work Commission (FWC) where a judge or FWC member is tasked with deciding whose evidence they prefer – essentially, who appears to be more credible and reliable.
The process of giving evidence about a conversation where there are only 2 people involved, with no recordings or contemporaneous notes to support a particular version of events, can be challenging.
The FWC recently considered a case where an employer and employee had very different versions of the reasons for a dismissal and what was said in a surrounding conversation. In this case, a manager had the foresight to record part of a discussion that later found its way into evidence before the FWC.
In that case, Zhang v Meeke Engineering  FWC 4400, the employee claimed that he was dismissed after refusing to perform work because he believed the work would aggravate his lower back condition.
His employer claimed to have no knowledge of this lower back condition and argued that the employee repeatedly refused to perform the work in question and demanded a pay increase.
It would have been a classic case of “he said/he said”, except that the employer had one piece of irrefutable evidence – a recording of a meeting.
Following the employee’s initial refusal to perform the work as requested by his supervisor, two other managers became involved. One manager approached the employee to discuss the issue, but again, he refused to carry out the work.
Finally, the employee was called into an office for a discussion with his supervisor and the two other managers. After the discussion had commenced, one of the managers began recording the conversation in which the employee repeatedly complained about his pay but did not mention his back injury once as the reason for refusing to perform the work he was directed to perform.
The employee was aware that the conversation was being recorded and although he did not consent to the recording being used as evidence at the FWC hearing, it was admitted into evidence. The recording was then backed by witness statements from the supervisor and one of the managers.
The employee’s application for unfair dismissal was dismissed on the basis that the evidence of the employer made the truth of the situation surrounding the employee’s dismissal quite clear. The FWC said:
It is abundantly clear from the recording, together with the evidence of Mr Vuong, that the applicant did not refuse to perform the task he had been given because of the poor state of his lower back, but because he thought he should be paid more. I am satisfied that the applicant never raised his back problems as a reason for not completing the task.
The success of the employer’s defence was in large part due to the recording and the supporting witness statements. Clearly, evidence of conversations can make or break a case where the parties have different versions of events.
In many cases, making an audio recording of a conversation will not be appropriate and the surveillance and monitoring laws that would apply to such a recording differ between the States and Territories. Employers should always ensure compliance with those laws prior to conducting recordings and/or seek legal advice before doing so.
Recordings should certainly not be conducted secretly or covertly. Ideally any party wishing to record a conversation should obtain the consent of the other participants before hitting the record button.
As an alternative to an audio recording, the best approach to making a contemporaneous record of a discussion is to take clear, detailed written notes at the meeting or very shortly afterwards. Notes should be dated and record who was at the meeting and what took place.
A good way to ensure that the truth of a meeting or conversation can later be corroborated is by bringing another person into the meeting. This person does not need to be an active participant, but may serve as a valuable witness at some point in the future. It may be as simple as asking a colleague if they have a few minutes to sit in on a meeting to observe and/or to act as the note taker.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
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