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Can I make a secret recording of a disciplinary meeting?

17 January 2019

It is becoming increasingly common and very easy for people to make secret audio recordings of conversations on their mobile phones or smartwatches. Technology is progressively finding its way into employment matters with employees secretly making recordings.

The case of Mr N

In a recent case Mr N was asked to attend a disciplinary meeting on the same day he was alleged to have criticised his employer in front of a staff member. He secretly recorded the meeting. He was later dismissed for breaching an express obligation in his employment agreement to “act in good faith” by secretly recording the meeting.

It is not a Criminal Offence to record a conversation that you are a party to. However the Authority ruled that his secret recording of the meeting, although not serious misconduct justifying dismissal, was a breach of good faith on his part and ordered him to pay a $2,000 penalty to the employer.

The value of recordings

Disciplinary meetings are intended to provide a fair opportunity for employees to give their explanation to allegations made against them, it is expected notes will be taken by those present. Using the information gathered from the meeting, further investigation is often undertaken with other employees/witnesses, which also impacts on the level of confidentiality expectations. If there are subsequent proceedings, then what occurred at a disciplinary meeting can also be disclosed. Consequently recording these meetings and having the audio tape transcribed assists in ensuring accuracy and fairness.

Breach of faith

Mr N should have told his employer at the outset he was recording the meeting given there is a ‘duty of good faith’ imposed on both employer and employee not to mislead or deceive the other nor do anything that is likely to do so.

Recording the meeting was considered by the Authority to be a breach of good faith, which impacted on the employer’s trust and confidence in him, but was not serious misconduct that deeply impaired or destroyed the employer’s trust and confidence in him.

Key point

An employee secretly recording a disciplinary meeting is not unlawful; however, secretly recording in this case however says it may be a breach of good faith. Employees, and likewise employers should advise at the outset they are recording the meeting to avoid breaching good faith obligations.