The recent political tea-pot tape saga has sparked a national debate on whether or not it is illegal to secretly record conversations. Often employment clients ask if it is “legal” to record conversations with their employer or employee without their knowledge.
It is not unlawful for a person to tape record a conversation as long as one participant to the conversation is aware of the recording.
This does not necessarily mean however that that recording could be used at a Hearing in the Employment Relations Authority.
There are a number of other factors that need to be considered.
The first is privacy. Covert recordings could be a breach of Principle 4 of Privacy Act and a disgruntled employer /employee could complain to the Privacy Commissioner. Principle 4 is concerned with the manner in which personal information is collected. This principle stated that personal information shall not be collected by:
(a) unlawful means; or
(b) means that are unfair or intrude to an unreasonable extent upon the personal affairs of the individual concerned.
The second is the obligation to act in good faith. In the past the Court of Appeal has commented that secret recordings may undermine the trust and confidence of the employment relationship. An example would be where an employer/employee conceals a microphone on their person and records face-to-face confidential conversations.
The last is admissibility. Evidence obtained as a result of surreptitious recordings is not necessarily admissible in the Employment Relations Authority or the Employment Court. The question is one of “fairness”. Protecting the trust and confidence of the employment relationship needs to be balanced against an employee’s ability to support his or her version of events.
Further, even if a tape recording is ruled admissible in the Employment Relations Authority or the Employment Court the recording or transcript can still be objected on the grounds of reliability and relevance.
So whilst “secretly “ recording your boss going off their nut at you may be helpful if they later deny doing it – do not assume that the recording would automatically be played in court.
