What happens if an employee secretly records a discussion he or she is having with you during a performance management meeting?
What if they are also recording conversations of other employees without their knowledge or consent?
Is the employee allowed to use their smart phone, BlackBerry, iPod or any other small recording device to secretly record a discussion about work performance?
In this brave new technological world, smart phones and other pocket-sized recording devices have given both employees and employers powerful tools to easily record playbacks of sensitive workplace conversations; sometimes, with the intent to take legal action or subject the parties or the organisation involved to public criticisim.
There is a growing amount of litigation in this area, so let’s take a brief look at what the law says.
Unfortunately, the laws in this area are complicated, and legislation varies throughout the States and Territories. However, all State and Federal legislation restricts the recording and publication of private conversations and telephone conversations, without the consent of the parties.
In Western Australia, the Surveillance Devices Act 1998 (Act) regulates the use of listening devices, optical surveillance devices and tracking devices. The Act may apply to workplaces where surveillance devices such as security cameras, closed circuit TV, telephone monitoring and GPS systems are being used.
It is generally an offence to use, install or maintain:
• listening devices to record or listen to a private conversation;
• optical surveillance devices to record visually or observe a private activity; or
• tracking devices to determine the geographical location of a person.
The Act defines a private activity as;
“any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed”.
Therefore, recording a private conversation in the workplace could be considered an offence, for example; where disciplinary action is being discussed between an employer and employee, and it is being recorded without the consent of the parties involved. The parties ought reasonably to expect that the conversation would not be recorded or listened to by a third party.
A listening device is defined as;
“any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear”
Therefore, smart phones, smart pens, Blackberry’s, iPods, iPhones etc are all classified as listening devices.
A private conversation means;
“any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.”
Therefore, if for example the performance management discussion is taking place in an office with the door open, or in an open plan environment, then it won’t be consdiered to be a private conversation.
However, there is case law which indicates this does not apply if the person recording the conversation believes that the recording is ‘reasonably necessary’ for the protection of his or her lawful interests. This question is determined objectively (ie. not what the person recording thinks, but what is reasonable in the circumstances).
Simply put, the laws in this area are not ‘clear cut.’
Eduard Christian Sent v Primelife Corporation Ltd  VSC 445
The employees in this case were the former CEO and deputy CEO of the employer of a company in Victoria. Following the termination of their employment, the employees brought claims against the employer alleging that the employer had breached its contractual obligations by wrongfully terminating their employment. The employer argued that the employees had engaged in conduct warranting summary dismissal (i.e. dismissal without notice).
The court held that the employees’ conduct (which included tapping the telephones of other employees, videotaping meetings, deceptions about the recordings having stopped, and cash payments to resolve industrial disputes) constituted serious misconduct warranting summary dismissal.
The court noted that “not every deliberately false statement by an executive officer to a board of directors… [will] constitute serious misconduct”. However, the employees’ conduct in this instance was deceitful and disobedient concerning matters of security and confidentiality.
If you have any questions regarding these issues in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au
Any publications and/or resources on published on this website are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice.