Can an Employee Use a Covertly Recorded Workplace Conversation?
Secretly recording a conversation with an employer might seem like a useful way to gather evidence, but it can create significant legal and employment risks. Recent Fair Work Commission decisions highlight that employees cannot assume a covert recording will be accepted as evidence, even when it relates to a workplace dispute.
Is it legal to secretly record a conversation?
The answer depends on the state or territory, the circumstances of the recording and what the employee intends to do with it. In NSW, the Surveillance Devices Act 2007 generally prohibits recording a private conversation using a listening device without the consent of all parties. Exceptions may apply, including where the recording is reasonably necessary to protect the lawful interests of the person making it.
Importantly, being a participant in the conversation does not automatically make a covert recording lawful.
The position can differ in other Australian jurisdictions, so the relevant state or territory legislation must be considered before drawing conclusions about a particular recording.
So can the recording be used in an employment dispute?
Even where an employee has made a recording, there is no guarantee that the Fair Work Commission or a court will allow it to be used as evidence. In Holt v TEEG Australia Pty Ltd [2025] FWC 1531, the Commission refused to admit secretly recorded workplace meetings and their transcripts in an unfair dismissal proceeding concerning an application for an extension of time.
The Commissioner was not satisfied that the recordings were reasonably necessary to protect the employee’s lawful interests. Other options were available, including taking notes, having a support person assist with note-taking, or preparing a written account immediately after the meeting.
The decision demonstrates that the circumstances surrounding a recording, the reason it was made and the availability of alternatives can all be important when the Commission considers whether to admit it as evidence.
A recording may be useful in some circumstances, but employees should not assume that it will automatically be accepted simply because it captures what was said.
Could an employee be disciplined for secretly recording a conversation? Potentially, yes.
In Heywood v [employer] [2024] FWC 2753, the Commission discussed the serious concerns associated with covert workplace recordings, including their potential to undermine trust and confidence between an employer and employee.
Secretly recording a performance meeting, disciplinary discussion or other confidential workplace conversation may be inconsistent with an employee’s obligations to their employer. Depending on the circumstances, it may provide a valid reason for disciplinary action or dismissal.
What should employers do?
If an employer discovers that an employee has secretly recorded a workplace conversation, the matter should be handled carefully.
Practical steps include:
- Investigate the circumstances. Establish what was recorded, why it was recorded and whether the recording has been distributed or used elsewhere.
- Consider the legal position. Obtain advice about the applicable surveillance legislation and whether the recording can lawfully be made, retained or disclosed.
- Review workplace policies. Check whether existing policies address recording meetings, confidentiality, privacy and appropriate employee conduct.
- Follow a fair disciplinary process. Give the employee an opportunity to explain their actions before deciding whether disciplinary action is appropriate.
- Improve meeting records. Keep accurate file notes of important discussions, performance meetings and disciplinary proceedings.
Employers should also consider why an employee felt the need to record a meeting secretly. It may indicate a breakdown in trust, concerns about how workplace matters are handled or a belief that the employee’s account of events will not otherwise be accepted.
The takeaway
Covert workplace recordings are a legal and employment relations minefield. An employee may face consequences for making a recording, while an employer may still need to address the underlying workplace issue that prompted it.
The best approach is to maintain accurate records, conduct meetings fairly and establish clear expectations about recording workplace discussions.
If a covert recording becomes part of a workplace dispute, seek legal advice before relying on it or taking disciplinary action.