Covert recordings by employee justified termination of employment
A recent Employment Relations Authority decision has brought to light the serious consequences of attempting to secretly record conversations in the workplace.
In Downer v. LM Architectural Builders Ltd [2025] NZERA 55, an employee attempted to capture private and confidential conversations of co-workers, including the company’s director, by intentionally leaving their work mobile phone face down on a desk in an open-plan office.
Although the employee was found to have been unjustifiably disadvantaged due to a suspension, the Authority concluded that the dismissal for making the recording was justified - even though the recording did not capture any conversations.
The Authority found that an employee who covertly recorded the conversations of others where the employee was not involved in those conversations, committed serious misconduct which warranted dismissal.
This was the case even though the employee did not succeed in recording the conversations that co-workers had after she left work, as her employer noticed the phone recording and stopped it.
Critically, the Authority considered that in circumstances where someone is unaware of being recorded and reasonably expected privacy, attempting to make a recording is likely to be inconsistent with the duty of good faith.
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