The Importance of Workplace Policies and Procedures – You Never Know When You Will Need to Rely on Them

In a recent case the Fair Work Commission (FWC) has outlined the importance of employer’s implementing safeguards through their workplace policies and procedures.

In Terrence McGlashan v MSS Security Pty Limited [2022] FWC 3304 the FWC was required to examine whether an employer is permitted to record conversations of their employees and if they were permitted to do so, what safeguards and permissions an employer may need to have in place to protect them from any claims.

In this case, the employee argued that the recording phone conversations between himself and colleagues, were illegally or improperly obtained and claimed that these recordings should be excluded as evidence. Ultimately, it was determined by the Commissioner that the recordings “do not contravene the relevant legislation and there is no compelling reason as to why this evidence should otherwise be excluded”.

Since this decision was handed down, questions have been raised as to how and when an employer is entitled to intercept and record phone conversations within their workplace.


The Legal Framework

An employer may be entitled to do intercept and record conversations in the workplace if they have telecommunications interception laws and clauses noted in their employment contract specifically relating to surveillance. Additionally, it is important employers are adopting all necessary measures to prevent a claim from being made against them, including adopting policies and making it clear to employees that conversations within the workplace, as well as calls made externally will be monitored.

The relevant pieces of legislation an employer should be taking into account include:

  • the Telecommunications (Interception and Access) Act 1979 (Cth);
  • the Surveillance Devices Act 2007 (NSW); and
  • the Listening Devices Act 1992 (Cth).

All three (3) pieces of legislation outline the intentions of using various equipment and when listening devices must not be used. For example, as outlined in section 4(1) of the Listening Devices Act 1992 (Cth):

  • a person must not use a listening device with the intention of:
  • listening to or recording a private conversation to which the person is not a party; or
  • recording a private conversation to which the person is a party.

Section 6 of the Telecommunications (Interception and Access) Act (Cth) refers to interception and where interception occurs it is only taken to have breached this section of the Act if an interception has occurred without the knowledge of the person making the communication.

It is imperative that employers are aware of the legal framework governing obligations surrounding intercepting and recording telecommunication if they are seeking to implement the recording of conversations in the workplace. If an employer records phone conversations, their workplace policies and procedures should specifically include a provision directly relating to surveillance within the workplace.

Further, since the COVID-19 pandemic, employers have had to adapt to flexible working arrangements, which has involved adapting to Microsoft Teams meetings and Zoom meetings. If an employer has to record a meeting via one of these platforms or through an alternative platform, this is permitted under state legislation if all parties to the conversation are aware of the recording and give their consent.

If an employee has been notified that their conversations will be recorded and accessed, this needs to be done in accordance with all relevant workplace policies and procedures, including their employment contract with respect to clauses relating to telecommunications interception laws and surveillance clauses in the contract.


Is recording a conversation at work a valid reason to dismiss an employee?

With the increased use of technology in the workplace, it is becoming much more common for employees to use a smartphone to record conversations between themselves and other employees, to gather evidence of workplace bullying or sexual harassment.

Under the Surveillance Devices Act 2007 (NSW), it is an offence to deliberately install, operate or maintain a listening device or record a private conversation when there is a party that is unaware of the recording. However, this legislation does not prohibit the use of a listening device where an employee is hearing impaired.

In Chandler v Bed Bath N’ Table Pty Ltd [2020], it was found that the behaviour of an employee in making a covert recording at work was sufficient reason to make reinstatement impossible due to a loss of trust between the employer and the employee.

To put it simply, recording a conversation at work is illegal and grounds for the employer to take disciplinary action for breaches of workplace policies and procedures. It may also be grounds for the employer to take disciplinary action against the employee, including to terminate the employment relationship.


Key Takeaways

  • Employers need to be aware of the legislative framework governing telecommunication and surveillance devices.
  • It is important an employer clearly communicates the rights and obligations of both parties in all workplace policies and procedures.
  • If a conversation needs to be recorded, it is important all parties to that conversation provide their consent to the recording being made.
  • It is illegal in New South Wales to record a conversation at work and if it is done without the consent of the parties, this may be a reasonable ground for an employer to dismiss an employee.


* This Article was prepared with the assistance of Ebony Billett *


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