By Charles Power

The secret recording of conversations by an employee with work colleagues can constitute valid reason for dismissal regardless of whether the actions are illegal.

In Tawanda Gadzikwa v Australian Government Department of Human Resources (2018), a terminated employee who applied for unfair dismissal remedy regularly undertook covert recording of his conversations with colleagues. This was not prohibited by the Victorian Surveillance Devices Act 1999. Unlike other jurisdictions, the prohibition in Victoria only applies to the use of a listening device to record a private conversation to which the person is not party, without the express or implied consent of each party to the conversation.

The Fair Work Commission (FWC) observed that, unless there is a justification, the secret recording of conversations with co-workers is highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction.

It is unfair to those who are secretly recorded because they are unaware that a record of their exact words is being made.

They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view.

The person recording, however, can do all of these things, and unfairly put himself at an advantage.

Moreover, once it is known that a person has secretly recorded a conversation, this will create a sense of fear and apprehension among workers that they must be cautious and vigilant.

This, according to the FWC, is potentially corrosive of a healthy and productive workplace environment.

Therefore, the secret recording of co-workers was not justified.

The FWC ruled that the employer had not acted improperly in its dealings with the employee and found that “the Department dismissed [the employee] for the reason it stated, namely non-performance of duties arising from his unauthorised absences”.

In the hearing it was noted, however, that if the dismissal was found to be harsh, unjust or unreasonable, the secret recording could constitute a separate valid reason for dismissal.