The Legality of Recording Conversations

Vince Scopelliti - Wednesday, March 20, 2019

How many times have you wished you had a record of a conversation? Perhaps you would have liked evidence of what was said, or you would have appreciated being able to play a conversation back for training purposes. 

Whatever the reason, we examine the legality of recording conversations in Australia. 

when can you record a conversation?

The legality of recording a conversation in Australia depends entirely on the jurisdiction. Each state and territory has separate legislation which sets out the law on surveillance and listening devices. 

Residents of Victoria, Queensland and the Northern Territory may be concerned to learn that there is no legislation prohibiting the recording of a private conversation (as long as the person recording is involved in that conversation). By contrast, recording conversations without permission of all parties is prohibited in New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory. 

Regardless of the jurisdiction, there is a prohibition on persons who are not party to a conversation, secretly recording or using a device to listen in on a conversation (with the exception of law enforcement). The obvious example here would be listening or recording devices being covertly installed in hotel rooms. 

what about recordings in the workplace? 

Conversations in the workplace come under the same legislation, which means whether or not it is legal to make a recording depends on jurisdiction. Covert recordings are against the law in New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory. But employers in Victoria, Queensland and the Northern Territory are permitted to record termination conversations, for example, without advising the employee that they are doing so. This recording can then be used to demonstrate that the employee was afforded due process prior to their termination. 

It is also legal for an employee in these states to record a conversation they are having with a colleague. However, it is important to note that, even though the recording of such a conversation may not necessarily be a criminal act, it is certainly frowned upon in the workplace. 

This was highlighted in the Fair Work Commission decision of Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878

In that decision, Mr Gadzikwa took a period of unpaid sick leave arising from a mental health condition. After a certain time, that leave was deemed to be unauthorised, and he was ultimately dismissed for non-performance of duties. 

During the course of the hearings, Mr Gadzikwa (who worked in Victoria) admitted that he had developed a practice of secretly recording conversations with his colleagues. While it is relevant that this practice did not form part of the employer's motivation in terminating Mr Gadzikwa's employment, the employer did submit that this was an inappropriate practice, regardless of Mr Gadzikwa's contention that he recorded conversations 'to protect himself'. 

Deputy President Colman criticised Mr Gadzikwa for his actions in doing so, noting that secret recordings are 'unfair to those who are being secretly recorded'. Ultimately, in the absence of any decent justification for recording the conversations, Deputy President Colman determined that Mr Gadzikwa's actions in doing so effectively diluted points in his favour which would have suggested that he had been inappropriately terminated.

covert recordings inadvisable at work

The warning contained in this decision is clear: everybody in the workplace, whether employer or employee, should be aware that even if it is not illegal to secretly record colleagues, bosses, or staff members, it is considered inappropriate, and may have negative ramifications in any dismissal or similar proceedings. If an individual has formed the view that a recording of a conversation is appropriate and necessary, the other participants should be advised in advance that the conversation is to be recorded, so that any objections can be voiced. 

WISE Workplace is highly experienced at conducting investigations into allegations of workplace misconduct and the surrounding legal issues. If you are looking for assistance to help navigate the challenging and complex issues of workplace misconduct, contact WISE today.

Gender Equality: How to Create a Win-Win in the Workplace

Vince Scopelliti - Wednesday, March 13, 2019

It can seem unbelievable that gender inequality persists in Australian workplaces in 2019. As well as the obvious human rights issues, some employers and managers fail to comprehend that a lack of gender equality can have measurable negative consequences for the organisation as a whole. 

Let's examine some of the alarming statistics around the situation for women in the workplace, the benefits of championing gender equality, and some of the more positive approaches that can be taken by organisations to create a win-win situation.

inequality - some sobering statistics

To fully understand gender inequality in Australian workplaces, it can help to absorb some of the bald statistics. Women across the Australian workforce are paid 15.3% less than men for equivalent work, and accumulate less than half the superannuation. They have a 50% chance of experiencing sexual harassment in the workplace, and the same odds of experiencing discrimination on the basis of being a parent! 

Barriers to gender equality in the workplace can be both subtle and not-so-subtle. Positional bias and diminished responsibility stem from the idea that only one gender or the other is 'right' for a job, such as reception work or heavy lifting. Subtler barriers see women being asked about family issues at job interviews - and yet not men. 

Other barriers include a lack of targeted support to help women overcome the promotional glass ceiling. For example, if the ability to act in higher positions, attend training or to network with stakeholders is not made sufficiently flexible for women in the workplace, then that glass ceiling will undoubtedly stay firmly in place.

WHy it's vital to rectify workplace gender inequality 

As indicated, these practices of gender inequality are deeply unacceptable on human rights grounds alone. Yet there is also a strong business case to be made for rectifying this situation and making gender equality a key component of business-as-usual. 

Firstly, fostering a level playing field in the workplace creates a sense of certainty and loyalty among all staff. The subsequent improvement in staff retention reduces the costs and inconvenience of rehiring and retraining. It also creates a more harmonious corporate environment due to reduced staffing changes. 

And - as if these benefits to business weren't enough - workplace gender equality enables longitudinal corporate knowledge to be more easily captured and retained. 

devEloping a high-quality business reputation

Reputational benefits also flow to those organisations that actively embrace equality for women in the workplace. For example, the prestigious Employer of Choice Awards in Australia recognises and promotes businesses that demonstrate practical gains in workplace gender equality. Reputational gains lead to the attraction and retention of high quality staff. 

fostering gender equality in your workplace

Many organisations have the best of intentions when it comes to improving gender equality. However sometimes it can be challenging to know where to start. A workplace audit of current equality initiatives can help to pinpoint any gaps - particularly between lip service and actual practice. From here, robust policies for parental leave and support, career assistance and flexible work arrangements can form an excellent base for the improvement of workplace gender equality on the ground. 

A strong framework for workplace gender equality

Being a leader in workplace gender equality brings considerable gains in employee satisfaction, reputation and the bottom line. It also works to lessen the chances of expensive claims being made on the basis of alleged gender discrimination. 

At WISE Workplace, we pride ourselves on the assistance that we provide to employers in their pursuit of excellence. We have the experience and governance expertise to help organisations remedy risks and work towards excellence in workplace gender equality. Get in touch if you would like to discuss the best ways to create equality in the workplace for women - and indeed for all employees.

Signed Statements vs Affidavits in Workplace Investigations

Vince Scopelliti - Wednesday, March 06, 2019

When conducting a workplace investigation, it is important that supporting evidence is collected in order to ensure that any decisions can be backed up, particularly in the event of legal proceedings.

We examine the merits of recording evidence in a signed statement versus an affidavit.

WHAt is a signed statement?  

The nature of a signed statement is fairly self-explanatory: this is a document where somebody records information they wish to present.

Unlike an affidavit, it does not necessarily need to be witnessed. If a witness is required, any adult can sign.

Statements are much less rigid documents than affidavits. As such, there are no requirements around the content or the format and the rules of evidence do not apply.

What is an affidavit?

In contrast, an affidavit is a legally recognised document which is considered to be 'sworn' evidence. If the deponent (the person providing the affidavit) does not wish to swear on a Bible or other religious text, an affidavit can be 'affirmed' in a secular fashion.

The signature on an affidavit must be witnessed, and that witness must be authorised to take affidavits. This is usually a qualified Justice of the Peace, or a solicitor or barrister.

Affidavits should only contain statements of fact rather than opinion, and information which the deponent is able to confirm of their own knowledge. For example, a deponent cannot say "I know that Billy swore at Jessica because Cynthia told me".  

The value of statement evidence vs affidavit evidence

Generally, a court or tribunal will make an order or direction as to whether a written statement is sufficient or affidavit evidence is required.

A written statement is usually enough in less serious circumstances. Written statements provide a helpful guide for a court or tribunal to determine what has occurred. But they are informative rather than being considered reliable evidence. This is because there are effectively no penalties for dishonesty in a written statement. If the statement is signed, however, you can challenge the credibility of the witness who gives evidence inconsistent with the contents of their signed statement. 

In contrast, an affidavit is a written version of verbal evidence. This means that providing false evidence in an affidavit is to all intent and purposes lying under oath, which could result in perjury charges being laid.

Should professional assistance be enlisted?

Writing affidavits can be a complicated process, and there is a risk that a court will refuse to allow some or all of the evidence contained in  an incorrectly drafted one. As noted, the consequences of giving false evidence in an affidavit are potentially very serious, and it is essential that anybody who has been asked to provide affidavit evidence is fully aware of the ramifications.

While there are resources that can help in drafting affidavits, professional assistance may be required, particularly if the investigation could potentially result in litigation or police intervention.

At WISE, our experienced team can assist you in conducting an unbiased and rigorous workplace investigation, including advising on whether witness statements will be sufficient or affidavit evidence will likely be required.