A recent Employment Relations Authority (Authority) decision has brought to light the serious consequences of attempting to secretly record conversations in the workplace. [1]
What happened?
An employee attempted to capture private and confidential conversations of co-workers, including the company’s director, by intentionally leaving their work mobile phone face down on a desk in an open-plan office.
Although the employee was found to have been unjustifiably disadvantaged due to a suspension, the Authority concluded that the dismissal for making the recording was justified – even though the recording did not capture any conversations.
Authority’s decision
The Authority found that an employee who covertly recorded the conversations of others where the employee was not involved in those conversations, committed serious misconduct which warranted dismissal.
This was the case even though the employee did not succeed in recording the conversations that co-workers had after she left work, as her employer noticed the phone recording and stopped it.
Critically, the Authority considered that in circumstances where someone is unaware of being recorded and reasonably expected privacy, attempting to make a recording is likely to be inconsistent with the duty of good faith.
Duty of good faith
The duty of good faith requires both parties to an employment relationship to deal with each other fairly and reasonably, and includes not indirectly doing anything likely to mislead or deceive the other.
Relevant to whether a covert recording may be a breach of the duty of good faith is:
- whether those recorded had a reasonable expectation of privacy or confidentiality
- the nature of the workplace
- the purpose of the recording
- what (if any) objection those being recorded may have.
Covert recordings
The Authority has previously recognised the seriousness of an employee secretly recording colleagues’ conversations when that employee is not present. [2] In a case involving a security service technician who covertly recorded co-worker conversations, the Authority found the behaviour was capable of irrevocably destroying an employer’s trust and substantively justifying summary dismissal.
In another case, the Authority reduced remedies to reflect that a secret recording by the employee contributed to the circumstances of a personal grievance and was arguably unlawful.[3]
Takeaways
This decision affirms that where an employee covertly records a conversation they were not a party to, this can amount to a breach of good faith and/or serious misconduct.
However, it is essential to remember that even where an employee engages in this kind of behaviour, it does not absolve employers of the obligation to act fairly and reasonably in any disciplinary process that may follow.
It is also important to note that under section 216B of the Crimes Act 1961, the secret recording of private conversations by an “interception device” can be a criminal offence if you are not a party to that conversation, with potential imprisonment for certain actions.
If you have any questions relating to covert recordings in your workplace, or any other employment-related issues, please do not hesitate to contact a member of our Employment Law team.
[1] Downer v LM Architectural Builders Ltd [2025] NZERA 55
[2] Curnow v Advanced Security Group (Sth Is) Ltd [2022] NZERA 359 at [75].
[3] Firman v Insyn Limited t/a Synergy Hair Riccarton [2016] NZERA Christchurch 227 at [111].
