Workplace Investigations Secret Recordings

Workplace Investigations Secret Recordings - Can you record conversations without the knowledge or consent of one or more of the parties. Thanks to Navjot Singh from Pannu Lawyers for the information about the cases in this article

As a workplace investigator it is my practice to audio or in the case of Zoom to video record my interviews.  This is always done with the full knowledge and consent of the interviewees. They are advised in writing prior to interview, in person prior to the actual interview commencing and on the record that the interview will be recorded and they will be provided with a full transcript. In all they have 4 opportunities to refuse or raise an objection.

But what about when one of the parties, complainant, witness or respondent secretly records a conversation. Is this legal? Can it be used in the investigation? Can it be used in evidence at a Tribunal or in Court?

What does the Act say?

The NSW Surveillance Devices Act 2007 Act generally say 'no',  (please check the applicable law in your jurisdiction) however there are exceptions and there have been cases in different areas of the law which have looked at whether recording a private conversation without consent may be “reasonably necessary for the protection of the lawful interests” of the person making the recording.

What does the NSW Surveillance Devices Act say on the matter;

Section 7 - Prohibition on installation, use and maintenance of listening devices

(1) A person must not knowingly install, use or cause to be used or maintain a listening device--

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

There are exceptions;

(3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if--

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation--

(i) is reasonably necessary for the protection of the lawful interests of that principal party

Interestingly the Commonwealth Evidence Act 1995  S138(1) allows technically illegally or improperly audio recordings to be admitted as evidence only when the desirability of its admission outweighs the undesirability of how it was obtained.

Section 138 - Discretion to exclude improperly or illegally obtained evidence

             (1)  Evidence that was obtained:

                     (a)  improperly or in contravention of an Australian law; or

                     (b)  in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

And cases -

Whether the purpose of the recording was for a legitimate purpose. That is, the recording was made to protect one’s self from being labelled a liar, such as in the case of R v Le (2004) where recordings where made to refute “he said/she said” claims.

In Rathswohl v Court [2020] NSWSC1490 illustrates how the court applies the above in determining whether a secret recording was made was reasonably necessary for the protection of the lawful interests of the person making the recording

In the case of DW v R (2014), where the recording was made to protect a minor from continuing abuse and exploitation. Alternatively, recordings which are made for the purpose of blackmail are not legitimate purposes.

From these cases, the following can be seen as deciding factors

Considerations

  • Whether the recording was the only practical way of protecting ones self or another or refuting allegations.
  • Whether there was any other practical means of recording the conversation, such as, reporting the matter to the police.
  • Whether there was a serious dispute between the parties, especially where the determination of the dispute would depend on oral evidence. Recordings of ‘just in case’ are not enough.

In the case of In the matter of Jasper & Corrigan (No.2) [2017] FCCA 1467 , (a Family Law matter) the wife had made a recording of the husband’s conversation without his knowledge or consent. The question for the Court was whether or not to allow the the recording as “admissible evidence”.  Judge Altobelli hearing the matter in NSW considered the legislation. He found that the wife had no other options available to her, in terms of evidence, therefore the use of the recordings as evidence was “reasonably necessary”. His Honour considered  on questions of admissibility, the Court would “exercise its discretion in allowing the evidence to be led”

In the case of  Tawanda Gadzikwa v Australian Government Department of Human Servic.... Fair Work Commission found that Mr Gadzikwa's actions in recording conversations relating to the termination of his employment were not consistent with Victorian Surveillance Devices Act 1999

The question of recording in sexual harassment matters

In an investigation I conducted a complainant secretly recorded a conversation where a male employee spent 30 minutes trying to convince her to have sex with him during which time she continually resisted.  The working situation meant they she couldn't just walk away.  She made the recording (a video) on her phone with the camera facing the ground.  No video footage was recorded other than the concrete but the video contained a full sound recording of the conversation.

The matter resulted in his termination and never went to the tribunal or court but had it I would have argued that she or was protected under S7 3(b) (1), as the recording was protecting her 'lawful interests'  to not be sexually harassed and gave her the ability to report the matter with evidence.

Lessons

  1. If you are going to record it is better to advise all the parties.
  2. You must be 'protecting your interests or rights' if you record secretly, and you can expect this claim to be tested.
  3. If you are being subjected to sexual harassment, tell the harasser that you will be recording, I am guessing that this will shut down the conversation very quickly.
  4. If you are being subjected to sexual harassment report the matter to HR or management.
  5. If HR or management don't take action tell them you know the law and the exception to recording under S7 3(b) (1), that might provide motivation to action on their part.

Advise for employers

  1. Never ignore these sort of situations
  2. Train your staff, encourage them to report matters so they don't have to record and gather evidence themselves
  3. If in doubt get expert help - www.awpti.com.au can assist and take the stress away for you.

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