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Key Takeaways from Nandi Segbedzi’s and Tim Kyriakou’s article -

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“Covert recordings at work: is it worth it?”

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As more and more employees start using smartphones at work, it is inevitable that issues arising from secret recordings will become more prevalent in the workplace.

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Employers should ensure that they have an appropriate privacy policy and information and communication technology policies in place that contemplate the issues and provide guidance for employees.

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Employees who make covert recordings in breach of employer policies may be subject to disciplinary action.

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Employers and employees should obtain the consent of other parties involved when using a recording device to make a record of meetings. If the parties have consented to the recording being made, the recording is more likely to be lawful and to be accepted as evidence by the Commission.

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A crucial consideration for the Commission will be whether the recording has been made in breach of the surveillance legislation that applies in the relevant jurisdiction. In Victoria, there is a general prohibition on recording in toilets, washrooms and lactation rooms. Other than that, the Surveillance Devices Act 1999 only prohibits the communication or publication of the recording. There is an exception for where the communication or publication is reasonably necessary for the protection of the lawful interests of the person making the recording or where it will be used in the course of legal proceedings.

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The case law demonstrates that covert recordings made without consent will often be inadmissible as evidence in a hearing before the Commission. It is however a matter of discretion as to whether the Commission admits such evidence.

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Even where the Commission admits covert recordings as evidence, it is often sceptical about the probative value of the recording because it is aware that it may unduly favour the party making the recording.

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About the authors: • Nandi Segbedzi, Special Counsel, Special Counsel, Justitia • Tim Kyriakou’s is a contributing author of LexisNexis Privacy Law Bulletin and a Legal

Researcher at Justitia