14 August 2019
It is becoming increasingly common for audio recording devices to be used in meetings between employers and their staff. Recording is easily done on any modern phone. Recordings may be made covertly or overtly without one party’s consent. Typically, covert recordings are made in an attempt to ambush or entrap the other party, and are made by people who watch too many American court dramas on television.
Employers should be aware of the Employment Relations Authority’s attitude to such recordings and how to manage a situation in which a recording might be made.
From a practical point of view audio recordings can be helpful as they can accurately present not only what was said, but how it was said. They capture quite accurately the tone of a meeting. They save both parties from having to take notes of what was said and allow a meaningful conversation to flow.
Audio recordings do have limitations though. If the sound quality is poor or if multiple voices overlap, they can be confusing to interpret. The mere presence of a recording device can limit a free exchange of views. Everybody is frightened of saying the wrong thing and getting criticised for it later. Covertly made recordings tend to produce artificial results because only one party knows it is happening. This can produce strange, lop sided conversations. If a conversation with a worker seems unusually strained then it might be being recorded.
The Authority’s attitude to covert recordings by employees is supportive, but each case is different. The Authority is an investigative body and is not constrained by the strict rules of evidence that apply to other Courts which have an adversarial approach. Recordings (or transcripts) that are relevant to a dispute save time and paint a clearer picture. If a covert recording is made in the context of an employer/employee meeting it is likely to be admissible. A covert recording of an “off the record” conversation, or of a conversation between third parties is unlikely to be admissible.
Admissibility of recordings is one aspect. Breach of good faith is another. In Nicol v Canterbury Concrete Cutting NZ Ltd a covert recording was made of a disciplinary meeting. The Authority ruled that the recording was a breach of good faith and ordered a penalty. The Employee had been provocative, and recording the meeting was aimed at undermining an already damaged employment relationship. Had it been made to ensure an accurate record it would have been less objectionable. Significantly, that recording (and an earlier covert recording) were still used in evidence.
A third consideration is privacy. Information collecting is guided by the principles in the Privacy Act. Privacy complaints are dealt with by the Privacy Commissioner or the Human Rights Review Tribunal. The Authority does not have jurisdiction to resolve privacy complaints and is unlikely to entertain a breach in the context of an employment dispute.
It doesn’t hurt to assume that difficult conversations with staff might be recorded. If your meeting is planned in advance then the fact that a recording device is present ought to not concern you. If you suspect it might happen then ask in advance.
There is no reason why an employer cannot suggest a recording be made, particularly in a complex investigation (multiple allegations or where the facts are murky and convoluted). If an employee prefers not to be recorded though, then just make notes manually. To insist on recording without an employee’s consent may be a breach of the employment agreement or be seen as bad faith.
Get familiar with your own recording device. Find out how it works, how to save and send audio files and how sensitive the microphone is. Understand the devices capacity to record long meetings in case it stops half way through.
If an employee wants to record a meeting then two devices could be used, so that everybody has a copy. If two recordings exist it helps prevent allegations of post interview editing.
Nobody likes listening to their own voice (except perhaps lawyers) but if a recording is to be made, do your best to ensure it is made on terms that suit you.
Stu Adamson | Solicitor
Diana Hudson | Managing Solicitor | 03 456 1804 | 021 816 469 | firstname.lastname@example.org
David Browne | Senior Solicitor | 03 456 1812 | 021 225 6938 | email@example.com
Adam Siwerski | Solicitor | 03 456 1809 | 021 756 809 | firstname.lastname@example.org
Stu Adamson | Solicitor | 021 197 4603 | email@example.com
Roger Gudsell | Advocate | 03 455 5165 | firstname.lastname@example.org