Recording the unrecorded: A manager’s guide to workplace privacy risks

Because what happens in the office shouldn’t always end up on tape.

Workplace trust is fragile, and a secret recording can shatter it in seconds. A recent ERA decision makes it clear; employees attempting to secretly record colleagues can face dismissal, and the consequences for employers are significant if these situations aren’t handled correctly.

In Downer v LM Architectural Builders Ltd, an employee tried to capture private conversations of co-workers, including the company director, by leaving a work phone on a desk in an open-plan office. While the recording didn’t actually capture any conversations, the ERA confirmed the dismissal was justified. The mere attempt to record was enough to constitute serious misconduct and a breach of the duty of good faith.

For managers, this is a crucial reminder: any covert recording in the workplace is a serious risk, not just to trust, but to culture, morale, and potentially even legal compliance. The ERA looks at factors like the reasonable expectation of privacy, the nature of the workplace, and the purpose of the recording, all of which can affect how seriously the misconduct is treated.

Even with serious breaches, employers must act fairly and reasonably. Following a clear disciplinary process is essential before making termination decisions. Ignoring procedure can expose a business to additional claims, even if the misconduct is obvious.

And there’s another layer to consider: under s. 216B of the Crimes Act 1961, secretly recording private conversations using an interception device is a criminal offence if the employee is not a participant in the conversation. Employers need to be aware of both the employment law and criminal law dimensions when responding to these situations.

It’s also worth noting that there’s a difference between an employee recording their own conversations and secretly recording others. If an employee records only their own discussions, say, for clarity on instructions or to help remember key points, this is generally less likely to be seen as serious misconduct, provided the recording is not shared without consent or used to mislead. Employers should still set clear expectations around the use of recordings, including whether they can be shared with colleagues or management, and consider including guidance in policies or agreements to avoid misunderstandings.

Action points for employers and managers:

• Ensure privacy and recording policies are clear and communicated to all staff.

• Train managers to recognise signs of covert recording or breaches of trust.

• Follow fair and documented disciplinary processes if misconduct occurs.

• Seek advice early from HR or legal professionals to ensure actions are compliant and defensible.

Secret recordings are more than just a breach of etiquette, they’re a serious workplace risk. Trust matters, and so does transparency. Covert recordings, successful or not, are serious. The key takeaway for managers is to strike a balance: supporting employees in managing their work effectively while protecting privacy and maintaining trust in the workplace.

If you’re an employer, it’s time to review your policies, set clear expectations around privacy, and make sure your disciplinary processes are watertight. If you’re an employee, it’s a reminder that not every story belongs on your phone.

Disclaimer This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.