For the record, you should now try and stop covert workplace recordings before they happen.
Businesses may not be protected from covert recordings as previously thought, with employers no longer able to rely on the implied term of mutual trust and confidence when dismissing employees who secretly record conversations.
Given we all carry mobile phones capable of being used as recording devices in our pockets, employers need to ask how well protected they are from secret recordings which could potentially damage employee/employer relationships and possibly the business itself.
Until recently, employers could dismiss employees for misconduct if caught covertly recording private workplace conversations on the basis of an employment contract breach.
Covert recording in the workplace has been viewed 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. However, there has been a change in legal interpretation.
A shift occurred last year when the High Court, in Commonwealth Bank of Australia v Barker, found that no implied term of mutual trust and confidence exists in employment agreements. Before Barker, a number of cases recognised that covert recordings undermined the mutual trust and confidence essential to the employment relationship.
Post Barker, the Queensland and New South Wales Courts of Appeal have rejected attempts to reinstate an implied term of trust and confidence in certain circumstances or employment contracts.
Employers and employees have also argued that ‘good faith’ may apply in employment relationships as an alternative, but this has not been recognised in cases before the courts. Implying ‘good faith’ in the context of termination for covert recordings has not yet been argued before the Fair Work Commission.
Courts prefer to rely on employment contracts according to their terms and may be reluctant to imply a term of good faith governing the contract as an alternative to mutual trust and confidence.
So how can employers protect themselves? Largely it comes down to sound workplace policies and employment contracts.
An employer may be protected against unfair dismissal claims if they are able to point to a workplace policy or express contractual terms providing grounds for dismissal on the basis of covert recording.
Employers should seek to incorporate the prohibition of covert recordings into workplace policies and employment contracts, to alert employees to the consequences, including disciplinary action or termination for breach.
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.
•Responding to 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.