Haslam v Fazche Pty Ltd: Secretly recorded conversations as evidence
Friday 6 September 2013 @ 11.07 a.m. | Industrial Law
In Haslam v Fazche Pty Ltd trading as Integrity New Homes [2013] FWC 5593 (delivered 12 August 2013) the Fair Work Commission (FWC) has refused to admit into evidence recordings made by a worker at two meetings which the worker claimed proved that she was dismissed and did not resign as claimed by the employer. The FWC ruled that the recordings were "most likely obtained improperly or in contravention of the law" because the recordings were made without the knowledge of the managers who attended the meetings.
The Fair Work Act 2009 (Cth) (the Act) s 591 allows the FWC a wide discretion in relation to the admission of evidence and the FWC is not bound by the rules of evidence and procedure in relation to a matter before it as was noted by Commissioner Wilson in the proceedings, but as also noted it does not follow that the FWC should not have regard to the rules of evidence in making its decisions.
The Commissioner did not listen to the recordings seeking written submissions from the employee (who represented herself) on how the recordings might assist her to prove that statements made by her former employer's witnesses were false. The employer argued that in the hearing of the unfair dismissal claim the FWC did not have jurisdiction to deal with it because the worker resigned.
The Commissioner considered the discretion to exclude "improperly or illegally obtained evidence" under the relevant evidence laws, concluding that the recordings were "potentially" made in contravention of the Listening and Surveillance Devices Act 1972 (SA) stating that:
"In the absence of any evidence to the contrary, it follows the recordings were most likely obtained improperly or in contravention [of] an Australian law, . . ."
As a result despite his view that the recordings assisted the worker's argument that she was dismissed and did not resign and that the employer's witnesses were being untruthful, the Commissioner said he was not persuaded to allow the recordings into evidence, allowing the worker only to put her contentions to the employer's witnesses in cross-examination.
This decision of the FWC is interesting in contrast to the recent decision in Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694 (delivered 12 July 2013) where the Federal Circuit Court agreed to admit a mobile phone recording of a meeting into evidence in a general protections claim, the court finding that it would assist in determining whether undue pressure had been applied to convince a worker to accept deductions in pay. The key difference in this second case being that the parties consented to the recording being admitted to evidence, the recording being apparently made inadvertently and the judge finding that it did not contravene the Western Australian surveillance devices laws.
As web site Justitia.com reports to date it has been common practice for "[E]mployees and employers [to] occasionally seek to protect themselves by making audio recordings of critical employment-related meetings. However, [this] decision of the Fair Work Commission suggests that using covert recording devices may be a pointless exercise..." certainly if its made secretly or without consent.
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