With the proliferation of technology that includes a recording function, people often assume that it’s ok to record conversations with their managers. But even though the technology is available, the action may be illegal.
“What employees need to be aware of is that in many jurisdictions, there is legislation that prohibits recording private conversations and indeed, it is a poor practice both legally and in terms of addressing employment issues, to be covertly recording conversations with managers,” said Michael Byrnes, special counsel at Clayton Utz.
“If you feel the need to have a conversation recorded, you should either ask that the conversation be recorded or make it clear at the outset of the meeting that you are recording the conversation.”
There have been occasions where covert or secret recordings have been admitted into evidence in unfair dismissal cases, but it can backfire on the employee, said Byrnes.
“Sometimes, an employee can be too clever by half in recording a conversation. What will happen is that the recording will enable the employee to successfully argue that their dismissal has been unfair, but the Fair Work Commission will say that the fact that the employee has recorded a conversation secretly with their employer means that it’s not reasonably practicable for the commission to order reinstatement because the relationship of trust and confidence has broken down.”
Recording private conversations is also against the law in some jurisdictions, violating listening devices legislation.
Byrnes said that while it is important to document what has happened in meetings, the way to do it is to either take notes as the meeting is taking place or to take a note as soon as possible after the meeting.
Another alternative is to have an independent witness or support person taking notes during the course of the meeting.
“Usually the listening devices legislation affects journalists in the course of their professional work or private investigators in the course of their work, but it applies to everybody and it can affect the recording of conversations that are considered to be private. A meeting with your manager would be considered to be a private conversation.”
Have you ever been secretly recorded by an employee? How did you deal with the situation?
Just because you can do something, it doesn’t mean you should.