Can you press record? With everyone carrying recording devices it is not surprising that the Fair Work Commission (“FWC”) has had a number of recent decisions involving covert recordings. In these cases, the FWC has had to consider the question…are these recordings admissible?  

The first case involved an employee who was the co-delegate of the union and whose employment was terminated following a meeting of union members in the meal room. The employer alleged that during the meeting the employee disclosed the confidential information of a colleague and engaged in aggressive and intimidating behaviour towards him. The employee was dismissed for misconduct and subsequently brought an unfair dismissal claim. 

The colleague made audio recordings of the meeting, which he said were for the purpose of making notes to distribute to union members not in attendance. The colleague did not inform attendees of the meeting that he was recording, nor did he seek the consent of those present to record. 

During the unfair dismissal proceedings, the employer sought to have the audio recordings admitted into evidence. The employee objected on the basis that they recorded a private conversation between union members and were made in contravention of surveillance laws. 

As a starting point, the general view of the FWC is that covert recordings, irrespective of whether they constitute an offence under surveillance laws, are inappropriate. However, the FWC went on to state that: 

• whether or not a covert recording will be admitted into evidence is a matter of discretion;
• each case will turn on its own facts;
• the FWC is not bound by the rules of evidence (although the rules cannot be ignored and provide general guidance); and
• the FWC has a broad discretion to inform itself in relation to any matter before it in such manner as it considers appropriate. 

The FWC found that the union meeting was not a private conversation and, in any event, the FWC did not have the jurisdiction to determine whether an audio recording was obtained lawfully or unlawfully under surveillance laws. 

While the FWC acknowledged that the rules of evidence do not apply, the FWC still considered the relevant legislation in relation to excluding improperly or illegally obtained evidence. As part of this assessment, the probative value of the evidence is to be considered. That is, whether the value of the evidence outweighs the way in which it was obtained. 

The FWC found that the probative value and importance of the audio recordings in determining whether the alleged conduct of the employee occurred outweighed the prejudicial value and undesirability of admitting the covert recordings. 

After considering the evidence (including the recordings) the FWC found that while there had been no disclosure of confidential information, the employee’s behaviour was unreasonable and intimidatory, and constituted harassment under the various company policies. Accordingly, there was a valid reason for the employee’s dismissal. 

But it all depends on the circumstances 

Remember that each case turns on its own facts… that was illustrated by another recent case where a covert recording was not admitted into evidence by the FWC. 

In this case, the employee made an unfair dismissal application. However, her employer lodged a jurisdictional objection on the basis that the employee’s dismissal had been the result of a genuine redundancy.  

The employee argued that her job remained necessary and continued to be performed by employees and contractors following the termination of her employment. The employee sought to admit into evidence a covert audio recording of her initial redundancy meeting. The employer asserted that this recording not admitted into evidence as it was illegally obtained under surveillance laws. 

The FWC considered many of the points in relation to the admission of covert recordings that were contemplated in the case above. 

The FWC found that “given the limited probative value of the evidence, and given that the [employee] could in any case cross examine one of her interlocutors from that meeting, the desirability of discouraging covert recordings was such that the evidence should not be admitted.” 

The decision noted that in previous decisions of the FWC covert recordings of meetings and conversations in the workplace have been found to be serious misconduct.  

These cases show that whether a covert recording will be admitted into evidence by the FWC will turn on the circumstances of each case and that the FWC ultimately has the power to admit or reject covert recordings. You can read some of our other articles on covert recordings here and here.