Although the premise of secretly recording a conversation with someone has always been viewed as morally bankrupt, we are seeing it become more prevalent in the workplace, with employees hoping that it will serve as a trump card.
As previously reported by HR Leader, Michael Byrnes, a partner in employment law at Swaab, referred to the act of secretly recording workplace conversations as a “practice of playing amateur detective”.
According to McInnes Wilson Lawyers employment and industrial relations specialist Ryan Murphy, it is a practice that continues to persist throughout workplace disputes in the courts.
“We are noticing that our employer clients are increasingly seeing their employees take covert or unauthorised recordings in performance and conduct discussions, given it is as easy as an employee opening the ‘voice memo’ app on their smartphone, or calling themselves and leaving a message,” he said.
Despite the increase, there are parameters in each state across Australia that regulate whether recordings are obtained with or without consent.
“Across Australia, there is a web of surveillance laws which increase the complexity as to whether a recording has been obtained lawfully or unlawfully. In New South Wales, it is unlawful to use a listening device’ such as a smartphone to record a private conversation that an individual is party to, unless an exception applies,” said Murphy.
“One exception that employees will try to rely on is that the recording was reasonably...
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