The recent decision of the Fair Work Commission (FWC) in Hong He v Federation of Ethnic Communities’ Councils of Australia [2023] FWC 1160 is, highlights the following:
Facts
The Applicant, Mr He was employed as a Policy and Project Officer at the Federation of Ethnic Communities’ Councils of Australia (FECCA).
Between 1 February and 14 February 2023, a series of events resulted in Mr He no longer being employed by FECCA. In the matter before the FWC, the parties chose to proceed on the basis that there was a dismissal.
Of the events which took place in this period, the following are particularly important:
- On 2 February 2023, Mr He and FECCA CEO Mohammad Al-Khafaji had a telephone conversation. Unknown to Mr Al-Khafaji at the time, Mr He’s wife overheard this call on speaker phone and recorded the call.
- On 6 February 2023, Mr He and Mr Al-Khafaji had a further telephone conversation. On this occasion, Mr Al-Khafaji specifically asked Mr He if he was recording the conversation and stated that he did not give permission for the conversation to be recorded. Mr He advised he was not recording the conversation, when in fact he was.
Mr He later brought unfair dismissal proceedings in the FWC.
Decision
In the course of the FWC proceedings, Mr He sought to tender the phone recordings as evidence. The FWC did not allow the tender of the recordings because it was clear they were made without the consent of Mr Al-Khafaji and contrary to the Listening Devices Act 1992 (ACT).
The main factor in dispute in the FWC proceedings was whether there was a valid reason to dismiss Mr He. In that regard, the FWC noted that:
- Where a dismissal relates to an employee’s conduct, the [FWC] must be satisfied that the conduct occurred and justified termination… The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.
- In this instance, the FWC held that the fact Mr He had recorded the 6 February 2023 conversation without consent, and had lied to Mr Al-Khafaji about his recording, was a valid reason for his dismissal. The FWC held that Mr He’s actions ‘were contrary to his duty of good faith and fidelity, and undermined the trust and confidence required in the employment relationship.’ Importantly, the FWC was satisfied this was a valid reason even though the employer was not aware of the recording until it was revealed during the FWC proceedings.
- The FWC went on to note that just because there is a valid reason for dismissal, this does not necessarily mean that the dismissal was fair. However, in this case, after weighing various other factors, the FWC determined that Mr He’s dismissal was indeed fair. His application was accordingly dismissed.
Conclusion
The key takeaways:
- Whilst there may be some limited circumstances where recording a person without their knowledge or consent is permissible from an evidentiary perspective, this is not the case in relation to industrial matters.
- FWC has confirmed that employees recording their employers without consent can form part of conduct which constitutes a valid reason for dismissal especially if the worker lies about it. The requirement applies equally to employers and employees.
- The FWC has provided a reminder that conduct can constitute a valid reason for dismissal even if the employer only learns about the conduct after the dismissal. Investigations into an employee’s conduct should not stop just because the employee may have resigned or been dismissed.
- Employers should always ensure they have a valid reason for dismissal, and comply with all procedural fairness requirements before dismissing an employee.
At WISE Workplace, we have a highly trained, qualified and experienced team committed to assisting employers in building positive workplace cultures. For more information, reach out to us today [email protected].
Photo by Jonathan Francisca on Unsplash
