The Authority considered the admissibility of three recordings made by an employee to support her claim for a personal grievance. All of the recordings were made without the knowledge or consent of the participants, and with the use of smartphone audio recording technology.
The first recording was made during a disciplinary process where suspension was discussed. The second recording was made by the employee leaving her mobile phone unattended in order to capture a conversation between other staff to which she was not privy and while she was not present. The employee said she had done this in order to establish that other staff were gossiping about her. The third recording arose from the employee purportedly inadvertently recording a conversation between a manager and another staff member. The employee tendered all three recordings and transcripts to the Authority as evidence to support her claims.
The Authority found that the first and second recordings were admissible. The third recording (between the manager and another staff member) was inadmissible.
Under the Employment Relations Act 2000, the Authority has a broad discretion in relation to the admissibility of evidence and prescribes that the Authority is not bound by rules of evidence and procedure, whereas other civil courts are required to follow the rules set down in the Evidence Act 2006. What is surprising about this ruling is the Authority admitting the interception of a third party communication (the second recording) which would ordinarily be considered a criminal offence under s 216 of the Crimes Act 1961.
The Authority admitted the first and second recordings because it considered they were relevant to the issues it needed to determine. What is unclear from the Authority’s determination is whether it had regard for contextual matters such as provocation and entrapment in considering whether or not to admit the evidence.
The admissibility of secret recordings and third party recordings raises the issue of whether the Authority should be condoning this practice. Plainly, secret recordings create an imbalance in the conversation where a party may be caught off guard and asked questions to elicit specific responses which they might not ordinarily provide. If a party is provoked or entrapped into making a response to matters which they ordinarily would not have made, is a matter relevant to fairness and is this good reason why such secret recordings should be excluded and the practice condemned? There is a real danger that such secret recordings do not provide a complete picture of the dialogue and interaction between the parties. This issue is of particular concern given the increasing ubiquity of smartphones with recording capability and the ability to manipulate digital information.
The secret recording of conversations and the admissibility of such recordings also seems to offend against public policy and preserving the interests of openness and fairness, including the implied term of mutual trust and confidence in an employment relationship. While each situation must be determined on the relevant circumstances surrounding the situation, secretly recording a conversation, or intercepting a third party conversation, carries with it an element of dishonesty as it offends against basic fairness and openness.
There is also a general concern that employees who secretly record other employees or managers breach privacy. The Privacy Act 1993 does not permit employers to unreasonably collect information about employees in a manner that is unfair to the employee or intrudes to an unreasonable extent into the employee’s affairs. It is reasonable to expect that same principle to apply to everyone.