The short answer is “only with the permission of those present”.

Investigation and disciplinary meetings are commonly recorded by employers as a way of capturing everything that is said in a meeting and the manner in which it is said. Employees should be conscious that they need to give permission for this to occur (and can refuse) and are entitled to require a copy of the recording as a condition of their consent. A request can also be made for a copy of any transcript of the recording.

But what about the secret recording of workplace meetings and conversations, particularly when an employee is seeking to allege workplace bullying or unfair treatment? Whilst the secret recording of a personal meeting in Queensland is not a criminal offence, the courts have made it clear that this evidence will only rarely be accepted. Be aware, though, that the law about secret recordings varies from state to state and the secret recording of phone conversations may be a breach of federal telecommunications legislation.

However, the Fair Work Commission (FWC) has gone further and has said in a series of decisions that secret recordings are destructive of the employment relationship and can be a valid reason for dismissal. The FWC has said it is unfair to those who are secretly recorded because they are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view.

The person recording, however, can do all of these things, and unfairly put themselves at an advantage. Secret recordings can also create a sense of fear among workers that they must be cautious and vigilant. This, according to the FWC, is potentially corrosive of a healthy and productive workplace environment – see Tawanda Gadzikwa v Australian Government Department of Human Services.

Whether it is an investigation or disciplinary meeting or workplace conversation, permission should always be asked for before recording the conversation. If there is no agreement, then a support person should take notes or otherwise, a note of the conversation should be made as soon as possible afterwards while the meeting is fresh in the mind. A covert recording (even if the words are audible) may not be accepted into evidence in a court hearing and, worse, may result in termination of employment.  Please contact us if you would like help in this area.