'Covert recordings at work: is it worth it?' considers the implications for employers when employees use smartphones to record discussions at work. The article also examines how the Fair Work Commission has dealt with the issue of whether covert recordings can be submitted as evidence in unfair dismissal proceedings, and whether a covert recording is a valid reason for the dismissal of an employee. This deck is taken from an article by Nandi Segbedzi, Special Counsel, Justitia and Tim Kyriakou, Legal Researcher, Justitia.

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Key Takeaways from Nandi Segbedzi’s and
Tim Kyriakou’s article -
#PrivacyAwarenessWeek
“Covert recordings at work: is it
worth it?”

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#PrivacyAwarenessWeek
As more and more employees
start using smartphones at
work, it is inevitable that issues
arising from secret recordings
will become more prevalent in
the workplace.

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#PrivacyAwarenessWeek
Employers should ensure that
they have an appropriate
privacy policy and information
and communication
technology policies in place
that contemplate the issues
and provide guidance for
employees.
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Employees who make covert
recordings in breach of
employer policies may be
subject to disciplinary action.
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Employers and employees should
obtain the consent of other parties
involved when using a recording
device to make a record of
meetings. If the parties have
consented to the recording being
made, the recording is more likely
to be lawful and to be accepted as
evidence by the Commission.
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A crucial consideration for the Commission will
be whether the recording has been made in
breach of the surveillance legislation that
applies in the relevant jurisdiction. In Victoria,
there is a general prohibition on recording in
toilets, washrooms and lactation rooms. Other
than that, the Surveillance Devices Act 1999
only prohibits the communication or
publication of the recording. There is an
exception for where the communication or
publication is reasonably necessary for the
protection of the lawful interests of the person
making the recording or where it will be used in
the course of legal proceedings.
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The case law demonstrates that
covert recordings made without
consent will often be inadmissible
as evidence in a hearing before the
Commission. It is however a matter
of discretion as to whether the
Commission admits such
evidence.
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Even where the Commission
admits covert recordings as
evidence, it is often sceptical
about the probative value of
the recording because it is
aware that it may unduly favour
the party making the recording.
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About the authors:
• Nandi Segbedzi, Special Counsel, Special Counsel, Justitia
• Tim Kyriakou’s is a contributing author of LexisNexis Privacy Law Bulletin and a Legal
Researcher at Justitia