Can I record my employer?

The Fair Work Commission has continually ruled that secretly recording your employer in a workplace conversation can be a valid reason for dismissal. This is even if the recording was legal under federal and state or territory laws.

It has never been easier to record conversations with your mobile phone. Many employees feel the need to do so in order to protect their interests, gather evidence or clarify details later. While recording a conversation might seem like a good idea, doing so without consent could lead to serious repercussions.

Secretly recording conversations at work: What employees need to know

The legality of recording private workplace conversations depends on where you are in Australia. Each state and territory has its own laws regarding surveillance and listening devices. In Queensland, Victoria and the Northern Territory, it is generally legal for someone to record a conversation they are part of. Even without the other person’s consent.

However, sharing or publishing the recording is restricted unless permitted under specific circumstances. For example, in Victoria an employee is allowed to communicate or publish a secret recording if it is for the protection of their lawful interests or the public interest. They can also disclose the recording during legal or disciplinary proceedings. This is also the case in Queensland.

In New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory, covert recordings are illegal unless all parties consent.

Federal laws concerning secret recordings

The federal Telecommunications (Interception and Access) Act 1979 makes it an offence to intercept communications passing over a telecommunications system. This means that recording phone calls or video meetings without permission, even if you are part of the conversation, could be illegal under federal law.

While the law varies depending on location, legality is not the only consideration. Secretly recording a workplace conversation can still have serious professional consequences.

Can you be dismissed for secretly recording my employer?

The short answer is yes. Even if recording a conversation is legal in your state or territory, doing so without consent can damage workplace trust and be considered misconduct. The Fair Work Commission has repeatedly upheld dismissals where employees secretly recorded conversations.

This was the case in the recent unfair dismissal case Karen Altham-Wooding v PKDK Adventures Pty Ltd [2024]. Which we will explore later in this article. In this case, the Commission said that unless there is justification, a secret recording in the workplace is “highly inappropriate.” It said that this can be the case even if the recording was legal. The Commission ruled that the secret recording itself constituted a valid reason for dismissal.

Can secret recordings be used as evidence?

Whether a secretly made recording can be used as evidence in a workplace dispute depends on multiple factors. Courts and tribunals weigh several considerations before allowing such recordings as evidence. This includes if the recording provides crucial evidence in the case. Also, if it was legally obtained and did not breach workplace policies.

In addition, whether the secret recording damaged the trust of the employer also weighs heavily on its admittance as evidence. For example, in Karen Altham-Wooding v PKDK Adventures Pty Ltd, the Fair Work Commission did not allow the secret recording as evidence.

Casual worker’s secret recording backfires at the Fair Work Commission

Let’s now take a closer look at the events of the unfair dismissal case Karen Altham-Wooding v PKDK Adventures Pty Ltd [2024]. Ms Altham-Wooding began working at a Newcastle, NSW based holiday park in November 2022 as a casual. Her role required her to perform housekeeping and reception duties.

At the time, the park was owned by Markel Management Pty Ltd. In April 2024, PKDK Adventures Pty Ltd assumed management, and Ms Altham-Wooding continued her casual employment under the new employer.

Dispute over rostered hours

Shortly after the change in management, Ms Altham-Wooding told PKDK Adventures that she was unhappy with the reduction in her rostered hours. The company said that winter trading was a quieter period, therefore requiring adjustments to the roster.

A few days later, Ms Altham-Wooding sent a text message to a PKDK Adventures manager. She said highlighted that she was “back to 14.5 hrs for the week.” This was despite the manager telling her she could work 25 hours per week. The manager responded by saying that Ms Altham-Wooding could take up extra hours by performing housekeeping. She, however, declined this offer.

Over the next few weeks, Ms Altham-Wooding had further interactions with the manager about her shifts. She yet again raised concerns over the reduction in hours. The manager told her to “hang in there” and assured her that her hours would increase. However, her rostered shifts continued to fluctuate.

Final shifts and cessation of employment

Ms Altham-Wooding worked her last shift for PKDK Adventures on 24 May 2024. Her scheduled shift for 25 May 2024 was removed. When Ms Altham-Wooding contacted a different manager about this, he initially cited a lack of available work but later stated that the shift had been reassigned for training purposes.

On 25 May 2024, the manager sent a text message to Ms Altham-Wooding asking her to come into the park on Monday for a chat. He asked her to reply to his text. However, Ms Altham-Wooding did not respond to this message. PKDK Adventures told the Fair Work Commission that it was “not willing to provide further shifts to a staff member who did not respond to us.” Ms Altham-Wooding was therefore not provided with any further shifts.

Worker secretly records meeting with employer

On 28 May 2024, Ms Altham-Wooding attended the park’s office to speak with management. However, she was told that neither of her two managers were available. Despite this, she spotted both managers in the office and saw one of them preparing to “go for a surf.”

During this visit, Ms Altham-Wooding made an audio recording of her attendance at the office with her mobile phone. She did not inform nor obtain consent from any parties involved. She later submitted this recording as evidence in her unfair dismissal claim.

Removed from rostering app

On 2 July 2024, Ms Altham-Wooding sent an email to PKDK Adventures. She said she had been working at the park “consistently” for over two and a half years. Doing up to 25 hours per week. She highlighted that it had been five weeks since she was last rostered a shift. Ms Altham-Wooding further stated that she did not know the reason for her removal from the roster. Furthermore, had not been consulted regarding these changes.

PKDK did not respond to this email. It told the Fair Work Commission that it did not as Ms Altham-Wooding had not replied to the text from the manager. On 22 July 2024, she tried to access the app on which she usually found out about her shifts at the park. Ms Altham-Wooding was not able to access the app.

Two days later, she sent an email telling PKDK Adventures that she had resigned from her position. She said that she had found a job at another park. Ms Altham-Wooding subsequently lodged an unfair dismissal claim with the Fair Work Commission.

Fair Work found worker was dismissed

The Fair Work Commission found that Ms Altham-Wooding’s employment with PKDK Adventures effectively ended on 22 July 2024. This conclusion was based on several factors, including the removal of her access to the rostering app. Also, because she had not been offered any shifts for around a month. The Commission noted that during this time other casual employees continued to receive and undertake shifts.

It also considered Ms Altham-Wooding’s attempts to discuss her employment status with PKDK Adventures. It noted that while she had not replied to a text message from her manager asking her to attend the office on Monday, she did turn up that day. Her managers were unavailable at that time and did not follow up with her afterwards.

This sequence of events led the Commission to conclude that a reasonable person in her position would have believed her employment had ended by 22 July 2024. It therefore determined that she had been dismissed at the initiative of PKDK Adventures.

Secret recording as a valid reason for dismissal

A central issue in this unfair dismissal case was Ms Altham-Wooding’s secret recording of a workplace conversation on 28 May 2024. The Fair Work Commission confirmed that PKDK Adventures was unaware of the recording until it was submitted as evidence in the unfair dismissal proceedings. The request to have the recording admitted was denied due to its secretive nature.

The Commission determined that making the recording without consent was a valid reason for dismissal. It referenced previous decisions that emphasised the inappropriate nature of such recordings. This included Gadzikwa v Australian Government Department of Human Services [2018].

In this case, the Fair Work Commission said that a secret recording is inappropriate as it is “unfair” to those who were recorded. It said that they have “no opportunity to choose their words carefully.” The Commission also noted that secret recordings could create a “sense of foreboding” in the workplace and undermine trust.

At Ms Altham-Wooding’s hearing, the Fair Work Commission also referenced Schwenke v Silcar Pty Ltd [2013]. In this case, the Full Bench of the Commission upheld a ruling that secret recordings could be considered a breach of an employee’s duty of good faith and fidelity to their employer. The Commission in that case found that the recording “undermined the trust and confidence required in the employment relationship” and justified summary dismissal.

Dismissal upheld despite procedural deficiencies

Despite finding a valid reason for dismissal, the Fair Work found that PKDK Adventures had denied Ms Altham-Wooding procedural fairness. The company had not communicated a formal dismissal to Ms Altham-Wooding before the removal of her access to the rostering app. The lack of engagement from the employer after she sought clarification about her employment status was noted as a factor in the case.

But despite these procedural deficiencies, the Fair Work Commission ruled that Ms Altham-Wooding’s dismissal was not unfair. It said that as a casual she did not have the right to expect any particular hours of work. It was noted that “fairness required” PKDK Adventures to at least tell her why she was not being provided the hours she desired.

The Commission said that the company “deliberately ignored” Ms Altham-Wooding’s attempts to seek information about why she was not being offered shifts. It found that this supported her argument that she had been unfairly dismissed.

However, the fact that Ms Altham-Wooding secretly recorded her managers proved to be her downfall. The Commission said that this “destroyed” the trust and confidence in the employee-employer relationship. It ultimately found that this destruction of trust outweighed the reasons supporting her claim of unfair dismissal. Ms Altham-Wooding’s claim was therefore dismissed.

Employee revealed she ignored a clear direction not to record the disciplinary meeting

The FWC has refused to hear a BP worker’s three-day late challenge to her sacking after she revealed she ignored a clear direction not to record the disciplinary meeting at which the employer summarily sacked her.

The oil giant summarily dismissed the assistant store manager at the Mareeba service station last October following an investigation into a co-worker’s claim that she told a job interviewee that indigenous children are occasionally allowed to sleep inside overnight, which breached BP’s 10pm to 5am locked door policy.

Commissioner Hunt further noted that in the course of arguing her case the assistant manager “alerted the Commission to the fact that she had covertly recorded her disciplinary meeting on 25 October 2025, despite a direction from [BP] not to make any recordings of the meeting”. While the assistant manager sought to have the recording and a transcript entered into evidence, BP resisted and the commissioner ultimately rejected it.

“Very troubled” about recording her employer

On the application’s merits, the commissioner said she had come to a “preliminary view” that BP had a “relatively weak” case based on the hearsay evidence. “[The assistant manager] is adamant that she did not make any concessions in the meeting when the allegations were put to her, and she was ultimately dismissed.” “That would need to be tested in a substantive hearing.”

Commissioner Hunt said, however, that she remained “very troubled by [the assistant manager’s] actions in deliberately disobeying a direction to record the conversation where she was dismissed”.

“I consider that [her] act of recording the conversation in defiance of a direction not to is a significant breach of trust and confidence and if the application for an extension of time were to be granted, and a substantive hearing held, this issue would have a very significant bearing on determining if [she] had been unfairly dismissed.”

“My preliminary view is that I would find that she had not been unfairly dismissed with the information now known to [BP] and to the Commission. Whilst the reason provided by [BP] to dismiss [the assistant manager] is, in my preliminary view, a weak case based on hearsay evidence, having regard to [the assistant manager’s] conduct in deliberately defying a direction not to record the meeting, I do not consider the merits support an extension of time being granted.

“Taking into consideration the matters I am required to take into account under s394(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.”

Deanne Margaret Harris v No. 1 Riverside Quay Proprietary Limited [2025] FWC 690 (7 March 2025)

More cases to read

Other decisions by the Fair Work Commission frowned upon an employee secretly recording at work include:

• Zhang v Royal Automobile Association of South Australia Incorporated [2019]: An employee was dismissed after secretly recording a meeting. The Commission found this action “fatally damaged” the employee-employer relationship. It was considered a valid reason for termination.
  
  
• Chandler v Bed Bath N’ Table [2020]: A covert recording by the employee was seen as a valid reason for dismissal by the Commission. The employee, however, won their case due to the procedural deficiencies of her employer when sacking her. The Commission said that the recording was “inappropriate and damaging of a relationship of trust and confidence with the employer.” One of the reasons the employee was not reinstated is that it was believed upon her return to work she would face disciplinary action for her recording, which would “likely result in her termination.”

Have you been unfairly dismissed?

Give our team a call today on 1800 333 666. We are Australia’s leading workplace mediators. Employers fear us, and workers know us for helping them get justice. For over thirty years, we have helped over 16,000 Australian workers in every state and territory.

With our help, you can make the best case at the Fair Work Commission. We can help you lodge an unfair dismissal claim and help you get reinstatement or compensation.

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