Can Employment Conversations Be Covertly Recorded?

Without even realising it, we now accept that what would otherwise be a private conversation may in fact be recorded. Many of the day to day exchanges we have in society may be recorded for the benefit of record keeping, or simply for training, coaching and customer services purposes.

With the advent of smartphones and other like technologies, recording devices are no longer restricted to being specialised pieces of equipment. They are literally at our fingertips. However, this does not mean that it is necessarily lawful to record a conversation without the knowledge and consent of one or more parties to the conversation.

In New South Wales and other jurisdictions, there is a general prohibition on the use of listening devices to record a private conversation to which a person is not a party. The basis of this law is founded on public policy considerations and in order to protect privacy and confidential communications of the general public.

Apart from certain exemptions granted to law enforcement bodies, there is two primary exceptions to the prohibition on using a recording device to record a private conversation. The Surveillance Devices Act 2007 (NSW) (“SDA”) allows for a private conversation to be recorded in circumstances where all of the principal parties to the conversation consent, either expressly or impliedly, to the recording. In addition, where a principal party to the conversation, (usually the person wishing to covertly record the conversation) does so where the recording is reasonably necessary for the protection of the lawful interests of that party, the SDA allows this to occur without the consent of the others to the conversation.

In circumstances where private conversations are recorded covertly, the Courts have confirmed that such recordings may be lawful for the protection of a party’s legal interests such that evidence of the conversation can be relied upon in formal proceedings. It is worth noting that even where the rules to the exception are not followed, a party may nevertheless seek to admit improperly obtained evidence, or seek to rely upon, evidence of a recorded conversation pursuant to section 138 of the Evidence Act 1995 (NSW) in certain circumstances.

Whilst the use of listening devices is not generally subject to any special rules in workplaces other than as described above, as is often the case for employers during internal disciplinary proceedings, or broader workforce consultation processes, some employees may wish to record the content of those conversations or vice-versa. In these circumstances, careful consideration should be given as to whether consent to record is given. If this becomes an issue, we recommend that the employer record the conversation and provide a copy of the script to the employee.

While each case will turn on its facts, the decision of Justice Lucev in Wintle v RUC Cementation Mining Contractors Pty Ltd (No 3) [2013] FCCA 694 demonstrates that secretly recorded conversations between an employee and their manager can be admitted into evidence (without knowledge or consent) where the recording is no more than reasonably necessary for the protection of the worker’s interests.

In summary, while it may be tempting to take a recording of a conversation with a troublesome employee in anticipation that it may be useful to you in the future, there are strict rules which apply for when such recordings can be lawfully used and how they should be obtained. It is worth noting that penalties may apply for contravening the SDA as well as other adverse consequences to a party’s credit in legal proceedings.

This alert is not intended to constitute legal advice. If you have an employment law issue, or wish to discuss the process for using listening devices in the workplace, please do not hesitate to contact us for specialist advice or assistance.