Covert recording of workplace conversations has become a recurring feature of employment disputes. It commonly emerges during investigations, disciplinary processes, performance discussions or grievance handling, often at the point where workplace tensions are already elevated. What might initially appear to be an evidentiary issue can quickly evolve into a broader question of legality, trust, procedural fairness and organisational risk.

The analytical error most frequently encountered is treating covert recording as a single legal question. It is not. In practice, three distinct issues arise, each requiring separate consideration:

• whether the recording may be lawful under applicable State or Territory surveillance legislation;
• whether the recording should be considered as evidence in an investigation or tribunal proceeding; and
• whether the act of secretly recording itself undermines the trust and confidence fundamental to the employment relationship.

Maintaining clarity between these questions is essential to defensible decision-making.

How decision-makers characterise covert recording

The Fair Work Commission has consistently adopted strong language when considering covert recording of workplace conversations. It has described such conduct as:

• “striking at the heart of the employment relationship”; and
• constituting an “extreme impropriety” in ordinary business and social dealings.

That language is not incidental. It reflects how industrial tribunals conceptualise covert recording: not simply as a technical legal issue, but as conduct bearing directly on trust, honesty and workplace integrity. This perspective frequently informs outcomes even where surveillance legislation is not determinative.

State surveillance legislation: relevant, but not decisive

Australia does not have a uniform national regime governing covert recording. Each State and Territory has its own surveillance or listening devices legislation, with differing approaches to:

• consent requirements;
• exceptions where recording may be reasonably necessary to protect lawful interests; and
• restrictions on communicating or publishing recordings.

Those legislative distinctions matter in assessing legal risk. However, they do not resolve the employment consequences.

The Fair Work Commission has made clear that determining whether a criminal offence has occurred under surveillance legislation is a matter for courts of competent jurisdiction. Its focus instead is on workplace conduct, procedural fairness and the integrity of the employment relationship.

From an employment law perspective, surveillance law therefore forms part of the analysis, not the conclusion.

Even where the legality of a recording is established, two further questions remain:

• whether the recording may be admitted into evidence; and
• whether making the recording itself constitutes misconduct.

Those questions frequently determine the ultimate employment outcome.

Admissibility: discretionary and context-dependent

Contrary to common assumption, covert recordings are not automatically excluded from Fair Work Commission proceedings.

The Commission:

• is not strictly bound by the rules of evidence;
• has broad statutory discretion to inform itself as it considers appropriate; and
• generally looks to evidentiary principles for guidance when exercising that discretion.

Where covert recordings are tendered, decision-makers typically weigh:

• the probative value of the recording;
• its importance in resolving contested factual issues;
• the seriousness of any impropriety in obtaining it;
• whether alternative evidence is available; and
• considerations of fairness between the parties.

Where credibility conflicts are pronounced, recordings have sometimes been admitted because hearing what was actually said is considered preferable to reconstructing events from competing recollections. Conversely, recordings have been excluded where they are incomplete, of limited probative value, or obtained in circumstances considered seriously improper.

Admission of a recording should not be interpreted as endorsement of the conduct involved in making it. It reflects an evidentiary assessment rather than a moral or employment judgment.

Employment consequences: trust, confidence and misconduct

From an employment law perspective, the Commission’s position has been notably consistent. Secretly recording workplace conversations is generally characterised as:

• deceptive conduct;
• inconsistent with duties of good faith and fidelity; and
• corrosive of the trust and confidence necessary to sustain an employment relationship.

This explains why covert recording may constitute a valid reason for dismissal even where no surveillance legislation has been breached.

A recurring theme in Commission decisions is that evidentiary success does not necessarily preserve the employment relationship. Recordings may assist an employee in challenging the substantive basis of a dismissal, yet the act of covert recording itself may still justify refusal of reinstatement or constitute separate misconduct.

Discovery after dismissal: procedural discipline remains essential

Where covert recordings come to light after dismissal, reliance on that conduct may still be available. However, procedural fairness considerations become critical. The employee must ordinarily be afforded an opportunity to respond, and the employer’s reasoning must be carefully documented.

Attempts to retrospectively rely on covert recordings without appropriate process frequently weaken the defensibility of the employer’s position.

Exceptional circumstances: protecting lawful interests

There are limited decisions where covert recording has been accepted as reasonably necessary to protect an employee’s lawful interests, typically involving allegations of exploitation, vulnerability or significant workplace power imbalance.

These decisions are fact-specific and should not be read as endorsing routine covert recording. In the majority of cases, assertions of self-protection alone have not displaced the Commission’s emphasis on openness, honesty and good faith in employment relationships.

Implications for workplace investigations and ER practice

Where covert recordings arise, a structured response is essential:

1. Assess potential surveillance law implications without assuming they determine employment consequences.
2. Make a documented, reasoned decision about evidentiary use.
3. Consider separately whether the act of recording raises conduct concerns.
4. Maintain procedural fairness and transparency throughout.

Clear organisational policy also remains an important preventative measure, particularly where expectations about recording workplace interactions are communicated in advance. In some contexts, transparent employer-led recording of key meetings can reduce uncertainty and limit incentives for covert recording.

Closing observation

Covert workplace recording is unlikely to diminish as a feature of employment disputes. As awareness of legal rights and evidentiary strategy increases, its prevalence is likely to continue.

The decisive factor in most matters is not the existence of the recording, but the clarity, discipline and consistency of the organisational response. Employers who distinguish carefully between legality, admissibility and employment consequences, and who maintain robust procedural standards, are significantly better positioned to manage both legal exposure and workplace relationships.

That remains the hallmark of effective employment relations practice.