It is not secret anymore: secret recordings in an employment context

It is well established that an employee secretly recording conversations with their employer may just give an employer evidence that supports dismissal. This is because secretly recording conversations is viewed as dishonest and well outside normal behaviour.

“In my view, there could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with management”, the Fair Work Commission has previously said.  

Surprisingly however, it is not uncommon for employees to secretly record meetings with their employer. This may arise where an employee is being performance managed or undertaking a disciplinary process. The employee may then later try to use that recording in termination proceedings against the employer.

In this article, we look at the legislation dealing with secret recordings and examine a recent decision of the Fair Work Commission in Harry Holt v TEEG Australia Pty Ltd [2025] FWC 1531 that dealt with the admissibility of a secret recording as evidence.

Federal and State law

Both Federal and State law prohibit the secret recording of a conversation.

In simple terms, the Telecommunications (Interception and Access) Act 1979 (Cth) prohibits the interception of a telephone communication. In NSW, the Surveillance Devices Act 2007 (NSW) prohibits the secret recording of a conversation by any listening device. A person also cannot possess or publish a private conversation obtained by the use of a listening device. These acts are each an offence (liable to 100 penalty units or 5 years imprisonment, or both), unless some relevant exception applies.

For present purposes, the relevant exception is where a person has recorded the private conversation for the protection of their lawful interests, or the recording is not made for the purpose of communicating or publishing the conversation or a report of the conversation to third parties.

Harry Holt v TEEG Australia Pty Ltd [2025] FWC 1531

Reassuringly, in Harry Holt v TEEG Australia Pty Ltd [2025] FWC 1531, the Fair Work Commission found that recordings of a disciplinary meeting were inadmissible as evidence in the proceedings.

Mr Holt was a casual employee who was dismissed and filed an unfair dismissal application out of time.

While dealing with Mr Holt’s extension of time application, Commissioner McKinnon dealt with Mr Holt’s request to submit a transcript of a recording of a private conversation to his unfair dismissal application. 

Mr Holt had secretly recorded meetings with his employer on four separate occasions. He had transcribed those recordings.

Commissioner McKinnon confirmed that it is unlawful under the Surveillance Devices Act to knowingly record a private conversation on a listening device without the other party’s consent unless recording is either,

1. reasonably necessary to protect the lawful interests of the person; or

2. not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to third parties.

Was the recording reasonably necessary to protect Mr Holt’s lawful interests? 

Mr Holt argued that it was reasonably necessary for him to record his meetings with the employer on the basis of his Autism Spectrum Disorder and that the dismissal posed a threat to his family’s defence-sponsored visa status.

Commissioner McKinnon was not satisfied that it was reasonably necessary for Mr Holt to record his meetings with the employer to protect his lawful interests saying there were other ways to keep a record of what occurred in the meetings including taking notes, having a support person to take notes and making contemporaneous notes after the meeting. Whilst Mr Holt was worried about the matter, there was a lack of evidence that such worry was reasonable in the circumstances. 

Was the recording limited to private use?

Commissioner McKinnon was not satisfied that when Mr Holt made the recordings his only purpose was to limit them for his private use. Commissioner McKinnon found that at the time of the final recording, legal proceedings had been contemplated. There was also evidence of the recording being made for use in future legal proceedings if resolution could not be reached.

The Commissioner said had the recordings been made for Mr Holt’s own private use, he could have used them privately to assist with the aide of his memory when preparing for any conference or hearing of the matter. However, he sought to use them in the proceedings as evidence.

As a result, the secret recordings and their transcriptions were not accepted into evidence.

Takeaway

There may be instances where an employee makes a secret recording of private conversations, team meetings or counselling sessions in the workplace. They may believe it is reasonably necessary to do so to protect their lawful interests around the termination of their employment.

It is unlawful for an employee to make secret recordings of private conversations unless there is some relevant exception. Whether it is reasonably necessary and lawful to do so will be dependent on the specific facts of each case. However, the Holt decision does suggest that it is unlikely to be reasonably necessary to secretly record when employees have readily available options to keep a record of the conversation in other ways, such as their capacity to make contemporaneous file notes during or after the private conversation.

While the ability to record may be easier with the technology available today on phones and other devices, human decency is also free and readily available. Employees can openly ask their employer to record the private conversation. If agreed, they can do so.

The Holt decision also suggests that a secret recording can be made if it is to be used solely as an aide memoire in future legal proceedings. This raises difficult issues as it may reveal that an employee has made a secret recording.  

Where an employer suspects secret recordings have been made, the existence of the dishonest act may support disciplinary outcomes. In these circumstances, an employer will need to give close consideration to the purpose for which the secret recording has been made and whether such conduct is compatible with the employment relationship. That of course, raises a different and distinct set of considerations such as whether the relationship of trust and confidence is rationally damaged by such secret and dishonest conduct. 

Authors: Sylvia Moses and Kristina Tato