A preliminary decision in an employment matter, specifically whether a covert recording was admissible as evidence before the Employment Relations Authority is raising eyebrows in the employment law world.
In the September 2016 case of Firman v Insyn Limited T/A Synergy Hair Riccarton, the employee, Ms Firman, made three covert recordings in her workplace and wanted to file the recordings, and subsequent transcripts of the recordings, as evidence that, among other claims, employees were bullying and gossiping about her.
The general rule of thumb regarding the covert recording of conversations in employment law is that, as long as one of the participants in the conversation (generally the recorder) knows that the conversation is being recorded, and the conversation has not been specifically designed by the employee or employer to entrap someone to say something out of context, then the recording is not illegal, and may be admissible as evidence.
One of the recordings was a conversation between Ms Firman and her employer, involving the handing over of a disciplinary letter and her suspension. That was held to be admissible, which is not so unusual in cases before the authority.
Another recording was a conversation between the employer and another employee, and Ms Firman claimed that this conversation had been inadvertently recorded. That was held to be inadmissible, which is also not unusual in these cases.
The remaining recording, however, is far more controversial in that Ms Firman intentionally left her phone on record, unbeknown to the other employees, and then left the room in order to record evidence of what other employees were saying about her when she was not there. Despite this being both a potential breach of the Privacy Act 1993 and the Crimes Act 1961, the authority member held the recording (and its transcript) was “…admissible in the context of a claim before the authority about how the applicant was treated in the workplace.”
Admissibility of the latter recording is highly unusual, although it does not make it, as some have erroneously termed it, a “landmark case.” For a case to be termed as such, it needs to have a significant and potentially lasting impact on the law and subsequent cases.
The authority is the lowest jurisdictional institution in employment law, outranked by the Employment Court, the Court of Appeal and the Supreme Court (in ascending order of jurisdictional clout). Decisions in the authority are not binding on any of the courts above it, nor even on other authority decisions at the same level, although an authority decision may be “persuasive” on other cases before the authority for the purposes of attempting to maintain consistency. What’s more, it is unknown at this early stage, whether this decision in the authority will be appealed in the Employment Court. Authority decisions frequently are appealed and overturned, so any “impact” this case has on the law, may well be short-lived.
A major consideration that both employees and employers need to consider when engaging in covert recordings that they are not party to is this; just because something is admissible as evidence, does not imply it is legal. If a defendant in a murder trial files evidence in their defence that at the time of the murder they were somewhere else committing a robbery, the evidence would be admissible but it would not make the robbery legal.
Pursuant to section 216B of the Crimes Act, it is a criminal offence, punishable by up to two years in prison, to “…intentionally intercept any private communication by means of an interception device” where the person recording is not party to the conversation. “Intercept” is defined in the Act as including “…to hear, listen to, or record…” and “interception device” is defined as any electronic device capable of carrying out the interception. So yes, recording a conversation you are not party to on a mobile phone could definitely come within that definition.
Take-home tips for employers from this controversial decision would be to ensure they have policies in place, which, among other things, specifically informs employees that covertly recording conversations they are not party to is a criminal offence, will be treated as serious misconduct and may result in summary dismissal and potentially even, criminal proceedings. The parties in an employment relationship are also constrained by good faith obligations, and any advantage a party might gain by engaging in covert recordings, may win the battle but not the war, if a covert recording is found to have breached good faith obligations or held to be a criminal offence.