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WAXMAN V PAL CASE HIGHLIGHTS EMPLOYER OBLIGATIONS WHEN RECORDING CONVERSATIONS AT WORK
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A recent case heard by the Human Rights Review Tribunal serves as a reminder to employers of their obligations regarding recording employees’ conversations at work.

The recent case of Waxman v Pal [2016] NZHRRT 28 (‘Waxman v Pal’) heard by the Human Rights Review Tribunal (‘HRR Tribunal’) serves as a reminder to employers of their obligations regarding recording employees’ conversations at work. Unless an exception clearly applies, it is key that employees are made aware of the recording of telephone conversations, and what they can be used for.
 
Waxman v Pal concerned a claim brought by Dr Waxman, who was employed as a locum at two GP surgeries. Dr Waxman’s employment was terminated after her employer discovered that she was keeping files on the employers IT system relating to persons who were not patients of the two practices. Dr Waxman took a case to the Disputes Tribunal regarding the nature of her termination. At this point she was made aware that, during the course of her employment, her telephone conversations had been recorded.  
 
Dr Waxman subsequently took a privacy complaint to the HRR Tribunal. She alleged that her employers had recorded her telephone conversations without her knowledge or consent. In defence, her employers claimed that she had been told in explicit terms that there was a policy of automatically recording all inward and outward telephone calls. The privacy aspect of the case largely hinged on whether or not Dr Waxman had been made aware of the phone recording.
 
Principle 3 of the Privacy Act 1993 requires that where an agency collects personal information from an individual, the person must be made aware that their information is being collected and a number of related disclosures. Usefully in this case, the employer was able to point to very clear policies as to how the call recording and archiving occurred and the policy provided the disclosure elements required by principle 3. The clear policies and the employers’ consistent evidence as to oral notification led the Tribunal to believe that the employer had taken such steps that were, in the circumstances, reasonable to ensure Dr Waxman was aware of the collection by phone recording and its purposes.
 
However, given there were grounds for dispute on this point between the parties, a further step that an employer could take as part of the induction process would be to obtain a written acknowledgement from the employee that he or she is aware of this policy and had read and understood it.   

Interestingly there is no mention of the employer’s obligation to notify its customers and other inbound and outbound callers that the phone conversations were being recording and for what purpose.  However this would also generally be required to comply with the New Zealand Privacy Act.

So if your business records telephone conversations ensure:

  • Clear internal policies describing the what, when, how and why of your telephone recording. In addition to providing the disclosures required by IPP3, such policies should deal with your organisation’s intended practices for controlling storage and access, timeframes for retention, and procedures for releasing call recordings.
  • Clear notification to participants involved in the recorded calls. 
    - For employees, notification can be through verbal disclosures and company policies and is best evidenced through a signed acknowledgment by the employee that they are aware of such policies.
    - For external callers, good practice would be a voice message at the start of all calls disclosing recording of the call.
  • Compliance with the policies, and implementation of appropriate security and other controls, over recorded materials to avoid breaches.

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