Malley & Co’s employment and privacy law specialist, Gareth Abdinor was recently interviewed on National Radio’s The Panel in relation to employees making secret recordings in the workplace.
There is unfortunately nothing new about employees making recordings of their employers and work colleagues without their knowledge. If anything, it is becoming more common. In New Zealand, unlike many overseas jurisdictions, it is not a criminal offence for the employee to do so as long as they are a party to that conversation. Nonetheless, where an employee secretly records discussions with their employer their actions may well breach the duty of good faith that they owe to their employer.
In Firman v Synergy Hair Riccarton, the Employment Relations Authority had to consider whether a covert and undisclosed recording made by an employee of her co-workers was admissible in her claim for work place bullying. What is interesting about this case is that the employee making the recording was not a party to the discussion. Instead, she placed her cell phone to record what her colleagues were saying when she had left the room. The Authority decided that the recording was admissible evidence and this has received significant media attention. Unfortunately, because this was only a preliminary issue, the Authority’s decision is very brief and does not appear to have considered the wider consequences of the employee’s actions. On the face of it, the employee’s actions potentially constituted a criminal offence (unauthorised interception of a communication) and potentially breached the privacy of her co-workers and for these reasons alone employees should think very carefully before making a covert recording, especially one where they are not even a party to the conversation in question.
If you have any questions regarding the making of recordings by employees in the work place please do not hesitate to contact Gareth on 379-0712 or at firstname.lastname@example.org.