Andrew Douglas: Nina, I want to talk about our main topic today, which is employees who surreptitiously record conversations, particularly in performance management and disciplinary proceedings.

Nina Hoang: And particularly where they’ve been told not to.

Andrew Douglas: Particularly where they’ve been told not to. And I guess it brings us to the case of Harris and number one Riverside Key Properties. Interesting set of facts. At the end of the day, the set of facts aren’t all that important, if that makes sense.

Nina Hoang: Yeah.

Andrew Douglas: What did happen during this process was that the employee, for fear of what was going to happen, actually did record the conversation.

Nina Hoang: Even though had been directed not to.

Andrew Douglas: Even though been directed not to. The decision, of course, was really a different decision.

Nina Hoang: It was about out of time.

Andrew Douglas: Yeah, out of time.

Nina Hoang: Yeah.

Andrew Douglas: And because there was no obvious reason for extending, that you go to the exceptional circumstances test, she said she was grieving and that’s why she didn’t put it in on time. Another set of facts, not all that important. What did come out as important is what was the impact of her doing this recording.

Nina Hoang: Mm.

Andrew Douglas: And did she publish it at all as well?

Nina Hoang: No, so she had used it in the submissions to try to be like, “I’ve got evidence that they’ve not treated me very well.” And what was really interesting I felt was the commissioner in this case said, “Look, I’m not required because I’m not going to grant the extension of time.” But made a point to say that refusing to comply with the direction not to record was a complete breach of trust and confidence. And it was like, that would’ve been a huge factor against her in the case, had it gone all the way. Yeah.

Andrew Douglas: I mean, it’s definitely not reinstatement.

Nina Hoang: Yeah.

Andrew Douglas: But at the start. But probably, and that comes from a case of Thomas and John Holland, which is not a, well, new case. It’s a 2012 case. But I guess if we look at the jurisdictions, surveillance devices act lives in different types of legislation throughout Australia when trying to define each one of them. But except for Victoria and Queensland, it is an offence to actually record a conversation you are present in with someone without their consent.

Nina Hoang: Yeah. You have to have the consent of all parties who are present.

Andrew Douglas: Yeah. In Victoria and Queensland, if you’re a party to a conversation, you can record it if it’s for a lawful purpose. And that lawful purpose could be, for instance, to protect your position.

Nina Hoang: Yeah.

Andrew Douglas: Okay? But if you are given a direction, or there exists directions within an organisation which are lawful and reasonable directions, saying you must not do it, then what happens is the lawful purpose falls away and it becomes an offence, ’cause the defence of lawful purpose doesn’t exist. But it also means, you go to this provision. So there’s a couple of cases, just for those who are interested. There’s Thomas and Nash that talks about what happens when you do this.

Again, not a new case, a South Australian case which says a recording without someone’s consent is clearly a breach of trust and confidence. A bit particular to that jurisdiction, but applies also to Victoria and Queensland. But undoubtedly, Thompson and John Holland goes squarely to the issue of, if you have received a direction or you are aware you are not to record and you do, it goes to the relationship of trust and confidence. It’s a lie. It’s a deceit.

Nina Hoang: Yeah.

Andrew Douglas: And therefore it’s enough to terminate of its own.

Nina Hoang: Yeah. The other part of the Victorian Queensland legislation is, while you are permitted to record it without someone else’s consent, if you are a party, you cannot publish it. That is a breach. And I guess what we’d be saying to employees in this situation, ’cause it might seem like, well, then how do they get evidence? It’s both parties are entitled to take their own notes of what happened. And you can rely on those contemporaneous notes.

Andrew Douglas: Yeah, and look, my concern, Nina, is always this. I don’t mind videoing an interview. I think it actually, after about five minutes, it sort of works. People relax and they start to be themself. But it is a bit clunky. And if you want the truth from people when people are vulnerable, it’s confronting.

Nina Hoang: Yeah.

Andrew Douglas: I think recording doesn’t capture, deliberately provocative behaviour. It doesn’t capture non-spoken, non-verbal behaviours. And it’s also able to be edited in, even the modern world, that editing can be quite difficult and very expensive to prove an edit did occur. So it’s not necessarily desirable, whereas I find when I’m taking notes, doing interviews with someone, it allows me to say, “Look, can you just hold for a second? Can I capture that?” It’s a very deliberate process and quite a powerful process of collecting contemporaneous notes.

So to mem it’s either, this is not for investigations, this is discipline or performance. I think in investigations where people are not so much on the hook, if that makes sense, video, audio recording’s fine as long as parties consent to it. But my preference is always notes.

Nina Hoang: Yeah. I think that’s better.

Andrew Douglas: Okay, let’s go to the case study, Nina.

Nina Hoang: All right, so Dirk knew he was in trouble. He had been struggling with his boss, Jan. She was trying to performance manage him, but had not been doing a good job. She would send him a list of her concerns and arrange to meet with him. He just didn’t understand why she didn’t come straight to him when things went wrong and discuss them. He felt he was being surveilled rather than managed. When he would come to the meeting, she wouldn’t be able to say when things had happened, but would always produce a couple of documents and point to errors.

At the last meeting, he asked her, “Why not just raise it at the time? It seems I must be doing a good job most of the time, but sometimes you’re unhappy and I have to wait several weeks to find out, then I can’t remember it.” She looked flustered. Jan said to him, “I’m trying to be nice, but obviously that isn’t working.” She left the meeting and he received a show-cause letter, two hours later from Jan’s boss, Brendan. Nicknamed Basher, Brendan, he was an ex-AFL player with a reputation for aggression and anger.

Dirk knew he was in trouble. He felt scared and alone. He attended the meeting and sitting in front of him was Brendan and Jan. She was white and frightened. Brendan was florid and fired up. There was a policy prohibiting covert recordings of conversations in the workplace, and Dirk knew it. But how was he going to prove what happened? There were two of them, and Jan was obviously terrified of Brendan too. She would end up saying whatever he said.

He switched on his phone surreptitiously and recorded the meeting. Brendan didn’t take long to accuse him of various misdeeds and demand an explanation. They were not unreasonable issues to raise, including a failure to respond several times to a big client who complained and took their account elsewhere. But Brendan’s manner was inexcusable.

At the end of the meeting, Brendan said to Dirk, “Tell us why we shouldn’t fire you.” Dirk was so scared, he just grunted, “It’s not fair.” His employment was summarily terminated for serious misconduct. He published part of the recording on his Facebook site, showing what a frightening experience it was and saying, “This is what happens when you disagree with Brendan,” accompanied by an AI generated photo of a huge angry pig with Brendan’s face on it.
How did you come up with the last bit?

Andrew Douglas: So what are the questions we’ve got to answer, today?

Nina Hoang: So what is the effect of recording the disciplinary meeting?

Andrew Douglas: What do you reckon?

Nina Hoang: Well, assuming he is in Victoria and Queensland so he can record it, it’s about whether he has a lawful reason or not. And I see we had a debate about this ’cause I feel like if he felt unsafe and he wanted to keep a record, I feel like that should be a lawful reason to keep it.

Andrew Douglas: Yeah.

Nina Hoang: Sorry, not to keep it, to make a record.

Andrew Douglas: And there is a tension here. So Thompson’s case would argue it’s used for the benefit in civil proceedings, but that’s more where you’re trying to deliberately record something for benefit, rather than to protect the position.

Nina Hoang: Yeah.

Andrew Douglas: So I’m sort of with you on that part of it. I think there is a lawful purpose. So it meets both criteria.

Nina Hoang: Yeah. But the publishing, I think, is not right.

Andrew Douglas: Yeah, and as I’ve said to Nina, I’ve only been involved once where police have done surreptitious recordings in another state, but the likelihood of prosecution is very low. So the issue then comes as to the admissibility of evidence.

Nina Hoang: Mm.

Andrew Douglas: And I guess that brings us to the real question of, well, now that he’s done it, what can you do with it? So we’ve got the effect of what the recording is. It probably was entitled to be done because he was present.

Nina Hoang: Yeah.

Andrew Douglas: And then was for a lawful purpose. The issue is, what can he do with it afterwards? He’s not allowed to publish it, per se.

Nina Hoang: Including like publishing it as part of his case.

Andrew Douglas: So the issue then is admissibility. And I won’t go through the full test admissibility, but one of them deals the issue of, where the nature of the admission of the evidence is more probative than the damage of breaching the law. So in other words, where there’s high levels of probative value in it, it will be admitted into evidence. Okay. So if his argument wasn’t in court, look, “I was treated shockingly, there is terrible procedure, it wasn’t fair, it wasn’t a valid reason,” it goes to the very heart of it. It’s likely to be admitted into evidence without being a breach.

Nina Hoang: Particularly if he was saying that they were both lying and colluding together.

Andrew Douglas: Yeah, so I just thought we’d put that out there. We’ll talk more about the publication afterwards, but I think that’s a really important issue. What about workers’ comp claim for Dirk, with what was happening with Jan all the way through?

Nina Hoang: Yeah, look, I think if he developed some kind of condition and well, I think yeah, linked to work because there were clear psychosocial hazards. So she was giving him feedback at the last minute, not really providing him with any clarity or direction so he couldn’t understand what was going on.

Andrew Douglas: No proper risk or reward.

Nina Hoang: Yeah.

Andrew Douglas: No conversation about what’s good or what’s bad.

Nina Hoang: Yeah. No consultation, really.

Andrew Douglas: Yeah, I think there’s psychological hazards. I don’t think,

Nina Hoang: Yeah.

Andrew Douglas: I dunno if I’ve asked about it.

Nina Hoang: Yeah you do.

Andrew Douglas: I do in the next question. Yeah. I don’t think it’s a safety law issue in some respects. I don’t think a regulator would be at all interested in that part of it. But I think he’s got a quite compensable claim and it is the very type of thing that leads people to breaking down,

Nina Hoang: Yeah.

Andrew Douglas: That repetitive nature of putting them on notice, creating tension.

Nina Hoang: And although this is part of like a management process, because it was an unreasonable way, they would never meet that threshold for their defence.

Andrew Douglas: No, no, they wouldn’t. So we’ll dodge the next question, which is around safety law. ‘Cause we’ve answered, it is a breach of primary duties, unquestionably, but no one would ever prosecute it.

Nina Hoang: Will Dirk win his unfair dismissal case and be reinstated?

Andrew Douglas: Good question, isn’t it? Well, he’s not going to be reinstated because-

Nina Hoang: No, breach of trust and confidence.

Andrew Douglas: Yeah. A, he’s gone and done something he shouldn’t have done, and then secondly, he’s gone out and lampooned Brendan afterwards on social media.

Nina Hoang: Yeah.

Andrew Douglas: Which means no, he’s not going to succeed. He’s not going to be reinstated. And the dishonest nature of what he has done, along with the relevant evidence of what was wrong before, the substantial wrongs before.

Nina Hoang: But like, he wasn’t fired for that. He was fired for his previous stuff.

Andrew Douglas: But it can be admitted in as another reason to enforce it.

Nina Hoang: Yes, I agree. But I don’t know whether they would meet like, the valid reason. So there were things like, they said he had issues with the clients and stuff like that.

Andrew Douglas: I think losing a client for failing to return a call is a valid reason.

Nina Hoang: Yeah, but the fact that they hadn’t pulled him at the time and they were doing it, I think, and also the lack of procedural fairness.

Andrew Douglas: Well, that goes to fairness.

Nina Hoang: Yeah.

Andrew Douglas: But that’s counteracted by Brendan’s behaviour.

Nina Hoang: Oh yeah, I guess so. I feel like it could go.

Andrew Douglas: I know it’s lined more, but the truth is, in unfair dismissal cases, you are allowed to enter into evidence,

Nina Hoang: That’s true.

Andrew Douglas: Post factor,

Nina Hoang: Yes.

Andrew Douglas: Post factor things, like dishonesty.

Nina Hoang: Yes.

Andrew Douglas: And here, you’ve got both dishonesty that you learn about, but also an attempt to wrongly publish in social media.

Nina Hoang: Yeah.

Andrew Douglas: Things which are derogatory about your boss and your business. So I think he’s in a lot of trouble, but that go to Facebook issue because

Nina Hoang: Yeah. So the question is, can his post be used in court? Even if it has the highest privacy question, so.

Andrew Douglas: The first question is, can Brendan and Jan’s business view it when they aren’t members of it to utilise it in court? And that goes against Jurassic, okay? Jurassic’s case is, you can go and use what’s in a social media site like Facebook where you’re investigating a matter and had you had to chat to the person about the post, they may delete it, therefore you can. But this is a case which is not about investigation. So it is an extension of Jurassic which says, basically, I can go and look and utilise it because it goes to the heart of the cause of the action. And if I tell the person about it beforehand, they will delete it and I can’t. So yes, it would be admissible in court.

Nina Hoang: All right, cool. We got to the end.

Andrew Douglas: I think it’s an interesting case study, isn’t it?

Nina Hoang: Yeah.

Andrew Douglas: And it just shows you, I think with technology the way it is at the moment, don’t forget there’s Kean and a whole lot of cases that talk about employers misusing surveillance as well. So that’s a topic for another day. I want you to understand from our point of view, candour and honesty about how I record things and how I do things is the very heart of trust that makes you stand well in court and stand well with your employees. Equally, when employees are dishonest, there is an abundance of law that says dishonesty is serious misconduct, including the regulations in 107. Thank you very much.

Nina Hoang: Thank you.

Andrew Douglas: Great to be with you. See you later.

Nina Hoang: Bye.

Andrew Douglas: Bye-bye.