Is it lawful? Can it be done in secret? A recent case sheds light on how and when you can record workplace conversations.
Zhang v Royal Automobile Association of South Australia Incorporated T/A RAA  FWC 8090 (2 December 2019)
- Mr Z was employed by Royal Automobile Association of South Australia Incorporated (RAA) for approximately nine years as a Service Technician.
- On 2 April 2019, Mr Z accessed some spare parts in breach of a recently established company procedure.
- On 5 April 2019, at a meeting with his manager and an HR representative, he was given a warning for this breach.
- At the meeting, Mr Z acted in a manner inconsistent with RAA’s code of conduct and refused to accept the warning.
- On 3 May, Mr Z was dismissed due to his conduct.
- As it turned out, Mr Z secretly taped the 5 April meeting on his phone.
The Fair Work Commission (FWC) found that Mr Z’s behaviour in the 5 April meeting was combative, disrespectful, disproportionate and represented a significant breach of the RAA code of conduct. It also found his responses in the investigation meeting on 4 April were not initially truthful.
The FWC refused to admit the tape into evidence, making its findings based on the evidence presented by the witnesses at the hearing. Significantly, FWC said Mr Z’s conduct in secretly recording the meeting on 5 April fatally damaged the employment relationship.
The Commissioner found as follows:
 Whilst it was only after the dismissal of Mr Zhang that the RAA became aware of the secret recording of the meeting, it is open to RAA to rely on Mr Zhang’s misconduct as a valid reason for the dismissal. As stated by the High Court, “if there were, in fact, any circumstances in existence at the time of the termination of the agreement which could have justified the respondent in so terminating it, then it may justify the termination by subsequent proof of those circumstances…”
 … judgement of Justice Bryson in See v Hardman which states he saw ‘no room to doubt that it is an impropriety to make a secret recording of a conversation bearing on some business interest or other important interest…’ and that ‘In ordinary business and social behaviour there is, in my understanding, a very strong expectation that there will not be a secret recording of a conversation but that in any process of recording will be revealed, so as to give those recorded an opportunity to decide whether or not they will participate’. Justice Bryson determined that such conduct was an ‘extreme impropriety.’ The decision of Justice Bryson is just as apt in 2019 as it was in 2002.
 I have found that Mr Zhang acted in the manner alleged by RAA and that was a significant breach of the RAA code of conduct. I have also found that Mr Zhang was untruthful during the investigation and that Mr Zhang’s secret recording of the meeting on 5 April 2019 fatally damaged the employment relationship. Each of those findings represents a valid reason in respect of Mr Zhang’s conduct
Message for employers
In Victoria, it is not unlawful to record meetings with employees, particularly investigation or disciplinary meetings.
However, to ensure you can rely on the tape as evidence in any proceeding, it would be prudent to announce the fact that the meeting is being recorded before the meeting starts.
It should also be noted that secret recording, by either party, may be viewed as an action fatally damaging the employment relationship.
If you would like advice or assistance with any of the above issues, please contact a member of our Workplace Relations team.
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