Karl Rozenbergs, partner at Hall & Wilcox, told HC
that there has been a change in employers’ legal position.
“Until recently, employers could dismiss employees for misconduct if caught covertly recording private workplace conversations on the basis of an employment contract breach,” he explained.
Rozenbergs said that the law previously viewed covert recording as a violation of the principles of mutual trust and confidence fundamental to employment relationships.
“This is leaving to one side the lawfulness of the conduct under relevant state or territory legislation that regulates covert recordings,” he continued.
A High Court decision last year led to a shift in the stance of the law, when a Judge found that the Commonwealth Bank of Australia had had no implied term of mutual trust and confidence in its employment agreements.
“Before [that case], a number of cases recognised that covert recordings undermined the mutual trust and confidence essential to the employment relationship,” Rozenbergs said.
He added that following the Commonwealth Bank case, the Courts of Appeal in Queensland and New South Wales rejected attempts to reinstate an implied term of trust and confidence in certain employment contracts or circumstances.
Since the High Court’s ruling, employers and employees alike have argued that ‘good faith’ could apply to employment relationships as an alternative – but this has not been successfully recognised in cases heard before the Courts.
Implying ‘good faith’ in the context of termination for covert recordings is yet to be argued before the Fair Work Commission (FWC).
“Courts prefer to rely on employment contracts according to their terms and will be reluctant to imply a term of good faith governing the contract as an alternative to mutual trust and confidence,” Rozenbergs said.
He added that employers are best protected against unfair dismissal claims if they are able to point to a workplace policy or express contractual terms the employee contravened, which is a ground for dismissal relating to the covert recording.
“Employers should seek to incorporate the prohibition of covert recordings into workplace policies and employment contracts, to alert employees of the consequences including disciplinary action or termination for breach,” Rozenbergs explained.
He said that other actions employers may take to manage covert recordings in the workplace include:
- Asking employees to switch off mobile phones and similar devices at the start of confidential workplace meetings
- Ensuring workplace policies are consistent with state legislative prohibitions on the use of surveillance devices
- Addressing an employee caught making a covert recording promptly and proportionately to the conduct in the circumstances
- Seeking advice prior to dismissing an employee for making covert recordings
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Employers cannot afford to rely on an implied term of mutual trust and confidence when it comes to dismissing employees who covertly recorded conversations, says an employment lawyer.