[2012] FWA 10363 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daran Thompson
v
John Holland Group Pty Ltd
(U2012/8200)
COMMISSIONER WILLIAMS |
PERTH, 18 DECEMBER 2012 |
Termination of employment.
[1] This matter involves an application made by Mr Daran Thompson (Mr Thompson or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent to this application is John Holland Group Pty Ltd (John Holland or the respondent).
Background
[2] The applicant was first employed by John Holland in June 2010.
[3] In November 2011 John Holland engaged the applicant in the position of Rail Safe Working Coordinator.
[4] In January 2012 the applicant was working on the Esperance re-railing project (the Esperance project).
[5] In March there was an alleged safety incident involving the applicant on the Esperance project which was investigated.
[6] At the conclusion of John Holland’s investigation the applicant was not issued with any warning nor was any disciplinary action taken against him in relation to the alleged safety incident.
[7] After a discussion with the applicant he was transferred to work at John Holland’s Midwest project (the Midwest project) under the supervision of a Mr Andrews, the Track Protection Officer. The intention was that the applicant would be mentored by Mr Andrews and trained up to take over a future Track Protection Officer (TPO) role.
[8] At the time the applicant was not necessarily happy with the situation but he preferred to remain in a staff position and so agreed to accept the role on the Midwest project 1.
[9] On the applicant’s first day on the Midwest project, 19 April 2012, the applicant met with the Project Manager, Mr Joseph Louis, and in attendance at that meeting was the Construction Manager, Mr Tony Owen.
[10] Without the knowledge or agreement of either Mr Louis or Mr Owen the applicant recorded what was said at that meeting on his phone.
[11] Approximately one week later the applicant played parts of that recording to Mr Andrews.
[12] Mr Andrews reported to Mr Louis that the applicant had recorded what was said during the 19 April 2012 meeting and he had replayed parts of it to him.
[13] John Holland then conducted an investigation in to the actions of the applicant and dismissed the applicant on 4 May 2012 with pay in lieu of notice.
[14] The reasons given by John Holland for the applicant’s dismissal were set out in their letter notifying the applicant of his termination 2 as follows:
[15] The issues to be determined by the Tribunal in this matter are whether the recording of the meeting and/or a transcript of that recording should be admitted into evidence as the applicant seeks, and whether the dismissal of the applicant was unfair.
Submissions
The applicant’s submissions
[16] The applicant was represented by Mr William Game.
[17] Mr Game submits that following the meeting with Mr Louis and Mr Owen the applicant had a clear understanding of what was expected of him and he was not confused at all 3.
[18] It is submitted on behalf of the applicant that it was only some time later out on the job when Mr Andrews asked him to open a boom gate that it became obvious to the applicant there was some confusion as to his role and so the applicant played the recording of the meeting that he had made to Mr Andrews to clear that confusion up.
[19] That submission however is contrary to the evidence of Mr Thompson that he did not have a clear understanding of what Mr Louis expected him to do and not to do and that he was extremely confused 4.
[20] Mr Game submits that there was an inference that Brookfield, the client of John Holland, did not like the applicant for reasons to do with the safety incident at the Esperance project and that the applicant rightly had concerns that his job was in jeopardy and that over a period of time he had received erratic directions from John Holland’s staff and managers.
[21] It is submitted that the conduct of John Holland staff demonstrates that it was necessary for the applicant to make the recording of the meeting to protect his position 5.
[22] It is submitted that the recording was made by the applicant to protect his legal position because his job was under threat and there was uncertainty about what he was actually required to do.
[23] Consequently it is argued the applicant has done nothing wrong and the dismissal was unfair.
The respondent’s submissions
[24] The applicant seeks to adduce as evidence in this matter a secret recording of a conversation on 19 April 2012 between himself, Mr Joseph Louis and Mr Anthony Owen of the respondent, and/or a transcript of that secret recording (the Secret Recording).
[25] The following matters are not in dispute:
a) the applicant made the Secret Recording on a listening device (his iPhone);
b) the applicant was a party to the conversation the subject of the Secret Recording;
c) the Secret Recording was made without the knowledge or consent of Mr Louis or Mr Owen; and
d) the applicant now claims to have made the Secret Recording to protect his lawful interests.
[26] The respondent submits the applicant’s conduct, in making the Secret Recording and then replaying the Secret Recording to another person is, prima facie, in breach sections 5 and 9 of the Surveillance Devices Act 1998 (WA) (the SD Act). While a contravention of either of these provisions is a criminal offence, these are not matters for determination in these proceedings.
[27] The respondent submits what is for determination is:
a) whether the Secret Recordings are admissible as evidence, and
b) whether the respondent was justified in dismissing the applicant because of his conduct in making the Secret Recording, and playing the Secret Recording to another person.
Admissibility of the Secret Recordings
[28] The respondent submits Fair Work Australia would as a general proposition, have the power to accept and consider evidence in the nature of the Secret Recording; sections 590 and 591 of the Act.
[29] However it is further submitted, Fair Work Australia should not accept or consider evidence of the Secret Recording where to do so may, or would, be contrary to another law, in this case the SD Act.
[30] While Fair Work Australia is not strictly bound by the Evidence Act 1995 (Cth) (the Evidence Act), it does not mean those rules are irrelevant. Those rules of evidence provide general guidance as to the manner in which the Tribunal chooses to inform itself 6. The respondent submits this is a case where, taking into account section 138 of the Evidence Act, the Secret Recordings should be regarded as inadmissible.
[31] On the evidence, the applicant had no lawful interest in making the Secret Recording, or playing the Secret Recording to a person who was not a party to the recorded conversation, Mr Andrews. Further, he has failed to provide any evidence of any lawful interest of his that he was protecting by the making and replying of the Secret Recording.
[32] The applicant gives no reason why he cannot adduce evidence personally of his recollection of the conversation the subject of the Secret Recording, which he should do without recourse to the Secret Recordings to refresh his memory. He suggests no prejudice or detriment to his case where he is required to do so, nor any advantage to the respondent or its witnesses.
[33] The applicant has failed to establish any basis for adducing the Secret Recording as evidence in this application. As such the respondent submits, Fair Work Australia should regard the Secret Recording or any evidence of the Secret Recording to be inadmissible, save and except for any evidence that may be adduced by the applicant personally (or by any of the respondent’s witnesses) without recourse to the Secret Recording to refresh his memory.
The reason for the dismissal
[34] In relation to the dismissal the respondent submits the facts of the Secret Recording constitutes in large part the basis of the respondent’s decision to dismiss the applicant from his employment, with payment in lieu of notice.
[35] The fact the applicant made the Secret Recording, and replayed it to a person not a party to the recorded conversation is not in dispute.
[36] The evidence is that the respondent provided the applicant with a reasonable opportunity to explain his reasons for doing so, and the applicant could give no reasons which, on an objective basis, could amount to reasonable grounds for his conduct.
[37] In support of his claimed right to make, and then replay the Secret Recording, the applicant relies entirely on an unreported decision of the Industrial Magistrates Court of Western Australia, and part of an article by Mr Tom Moloney SC from a NSW Law Society Journal from March 1998 in justification of his conduct. Both the decision and Mr Maloney’s article pre-date the SD Act (which commenced 22 November 1999). The article takes into account NSW and Federal law at that time (but not WA law), and omits a crucial caveat at the end of the article urging “anyone intending to record conversations surreptitiously would be well advised to obtain legal advice before beginning.”
[38] The respondent submits neither the decision nor the article relied on by the Applicant assist him in any way. Instead, Fair Work Australia will be guided by the approach of the Federal Court of Australia in Metz Holdings Pty Ltd v Simmao Pty Ltd (No 1) 7, albeit in very different factual circumstances.
[39] On the evidence, it was open to the respondent to conclude the applicant’s conduct was prima facie in contravention of sections 5 and 9 of the SD Act, was a breach of the respondent’s Code of Ethics and gave rise to a valid reason to dismiss the applicant from his employment. In reaching this decision, the respondent was entitled to take into account all of the applicant’s relevant conduct, including his conduct and candour in the disciplinary process and meetings in the period 27 April - 4 May 2012.
[40] The applicant was notified of the reason for his dismissal and given a number of opportunities to respond to that reason in person and in writing in the period 27 April - 4 May 2012.
[41] There was no reasonable refusal by the respondent to allow the applicant to have a support person present at any discussions relating to the dismissal.
[42] The size of the respondent’s enterprise, and the involvement of dedicate human resources management specialists in the enterprise has not impacted on the procedures followed by the respondent in effecting the dismissal and there is no other mitigating factor or matter that should be taken into account by Fair Work Australia as being in support of the application.
[43] The respondent submits the applicant was not unfairly dismissed and his application should be rejected.
The evidence
[44] The applicant’s evidence was that on his first day on the Midwest project he was inducted by a Safety Officer.
[45] His evidence was that whilst walking up the stairs with that Safety Officer they passed the Project Manager Mr Louis’s office. The applicant says Mr Louis told the Safety Officer that he was not to go on site until the applicant had seen the Project Manager. The applicant says Mr Louis was loud and hostile towards the Safety Officer with regards to the applicant.
[46] Next the applicant says that during that induction the Safety Officer said “What have you done I have never seen him act like this?” The applicant says the Safety Officer was referring to the Project Manager, Mr Louis.
[47] After the induction the applicant and the Safety Officer made their way to the Project Manager’s office and Mr Louis yelled that the applicant was to come in.
[48] The applicant’s evidence from his witness statement was that:
“At this time due to the demeanour and behaviour of the Project Manager coupled with the admission of the Safety Officer of how out of character this behaviour was, I decided that I needed to protect myself from this man that appeared by his actions to have issues with my presence on the project.
The Project Manager called the Construction Manager into the meeting.” 8
[49] As later evidence shows the applicant then at the commencement of the meeting with the Project Manager and the Construction Manager activated the recording function on his phone without the knowledge or agreement of either of the other two persons in that meeting.
[50] During the applicant’s oral evidence he explained that he was concerned because he thought the Construction Manager was there as a witness and he felt he needed to protect himself. He says he was not offered an opportunity to have a witness. At that stage he started recording the meeting 9.
[51] Under cross examination the applicant agreed that when Mr Louis was being loud and hostile prior to meeting with the applicant and that this was directed towards the Safety Officer and not towards the applicant.
[52] The applicant agreed that if Mr Louis had not been hostile and aggressive and not yelled he would have had no reason to record the meeting 10.
[53] The applicant explained that immediately before meeting with the applicant, when Mr Louis yelled from his office, that this was to make sure that the applicant and the Safety Officer did not walk past his office 11.
[54] The applicant says he believed he was the target or the reason for Mr Louis’s anger 12.
[55] Some later time during an interview with the applicant which was conducted as part of the John Holland investigation into the applicant’s actions, he was asked whether he had recorded a second conversation between himself Mr Louis and Mr Drew. The applicant’s answer to that question during the interview was:
“I do not believe I have to answer that.” 13
[56] The applicant was asked the same question again in a later meeting and gave the same reply but then explained that he was willing to directly answer the question but only after having been assured by John Holland that he had not breached any law and that they accepted he was acting in his legal interests 14.
[57] John Holland did not give the applicant this assurance at that time nor at any time since.
[58] At the hearing of this matter the applicant’s evidence was that he had not recorded this second conversation at all.
[59] Evidence was also given by the applicant that whilst accompanying Mr Andrews in his vehicle Mr Andrews would sometimes activate a recording device to record the mobile phone conversations he had with other persons.
[60] Evidence for the applicant was also given by Mr Game who attended a meeting with the applicant as his support person on 2 May 2012 with the respective John Holland staff investigating the issues. Mr Game was not cross-examined by the respondent.
[61] Evidence was also given by Ms Katrina Lewis the Senior Human Resource Adviser Rail for John Holland. Ms Lewis was not cross-examined by the applicant.
[62] Evidence was also given by Mr Mark Smith the Safety Superintended Rail for John Holland. The evidence of Mr Smith was not challenged when cross-examined by the applicant.
[63] Evidence was also given by Mr Louis the Project Manager for John Holland on the Midwest project.
[64] His evidence was that Mr Kim Drew, the John Holland Rail Safety Manager for Western Australia, had requested that he find a position for the applicant on the Midwest project. Mr Drew had told him that the applicant had been stood down by Brookfield on another project due to performance issues but did not tell Mr Louis what the issue was and he was unaware of the detail of this.
[65] At the time of this request there was no vacant TPO role on the Midwest project but Mr Louis was conscious that due to the tight schedule of work they could use an extra hand to assist the project’s TPO as a Flagman/Assistant. In this role the applicant would assist the TPO by manning level crossings when work was being conducted in the vicinity.
[66] Mr Louis understood that the cost of the applicant’s employment was to be borne by the Esperance project not the Midwest project.
[67] His evidence was that the TPO liaises with other parties to close sections of the railway track to enable works to be carried out. On each day sections of the railway track are closed and the TPO ensures that each team working on the track books on and then books off so that when the track is later opened for traffic no employees or equipment are on the track.
[68] His evidence was that the role of the TPO was occupied by Mr Andrews and Mr Louis wanted the applicant to understand that whilst he normally held the title of TPO he was not going to be performing those functions on the Midwest project.
[69] Mr Louis says he wanted to avoid any confusion with the applicant being on the site arising because he may think that he would be acting or performing as the TPO when he would not be required to do so. Mr Louis did not believe that he raised his voice at all when dealing with the applicant.
[70] The evidence of Mr Louis was that the conversation he had with the applicant in the presence of Mr Owen was to explain to the applicant that he would not be working on the Midwest project as a TPO, although he was qualified as one, because the Midwest project only needed a person to assist Mr Andrews (who was the TPO) as a Flagman.
[71] He told the applicant he was not to introduce himself as the TPO on the Midwest project as that may result in someone calling him and teams wanting to book on and off the track with him which would create confusion.
[72] He advised the applicant he was not to contact Train Control in the capacity of a TPO.
[73] He was to work as a Flagman and an Assistant to the TPO and he was told that if he was not happy with this arrangement that he should talk to Mr Drew.
[74] Mr Louis evidence was that the applicant told him he understood what he was saying and what his responsibilities on the Midwest project were and the applicant did not voice any concerns to Mr Louis.
[75] As Mr Louis says the conversation with the applicant was a normal conversation that he would have with any employee.
[76] Mr Louis also gave evidence that in April 2012 John Holland was trialling a system of recording phone calls to and from the TPO that were related to “safe-working”. Safe-working is a term used by Brookfield. Safe-working conversations refer to discussions where for example a Team Leader contacts the TPO to advise he wants to book on to be able to work at a particular section of track. He will contact the TPO and tell him that they want to get on the track and the time they want to get on and the time they want to get off.
[77] The intent of recording these calls was for the training and safety purposes of both John Holland and Brookfield and also because if there needed to be an investigation into a reportable safety incident the recorded calls would be an important record.
[78] Mr Louis’s evidence, which was unchallenged, was that during this trial period the Supervisors were advised that the system of recording safe-working conversations was to be introduced permanently from 27 April 2012 and memos explaining this were issued and placed on project noticeboards. Mr Louis also participated in tool box meetings where he advised the entire team that the trial system of recording safe working conversations had been made permanent.
[79] Mr Andrews also gave evidence and this was consistent with the evidence of Mr Louis regarding the recording of safe working conversations on the Midwest project.
[80] Mr Andrews’ evidence was that whilst he and the applicant were in Mr Andrews’ vehicle the applicant pointed to the voice recorder on the vehicle dashboard which Mr Andrews used and said words to the effect of:
“That is like what I use. I record all my conversations to cover my arse.”
[81] Mr Andrews’ evidence was that he had previously noticed the applicant had written the letters “CYA” on the front cover of most of his literature which he understood to mean “cover your arse”.
[82] The applicant then showed Mr Andrews his iPhone and told him that he could just put it on the desk of unsuspecting persons and press record without anyone knowing, he then said
“Listen to this, I recorded it earlier in the Project Manager’s office.”
[83] The applicant had then replayed a conversation which he explained to Mr Andrews was one he had held with Mr Louis and Mr Owen.
[84] Mr Andrews’ evidence was that his impression was that the applicant was proud of his recordings.
[85] Mr Andrews’ says that he was shocked by the applicant’s actions.
[86] Mr Andrews’ evidence was that the applicant also showed him a program on his iPad that could convert speech recordings into text. The applicant demonstrated this program to Mr Andrews using an earlier conversation between them the applicant had apparently recorded.
[87] Mr Andrews’ evidence was that he was not aware that the applicant had recorded their conversations and he had not consented to the applicant doing so.
[88] Shortly after this Mr Andrews advised Mr Louis of the fact that the applicant had apparently recorded the conversation between Mr Louis and the applicant with Mr Owen present.
[89] In cross-examination the applicant challenged Mr Andrews as to whether the date the applicant played the recordings to him whilst in his vehicle was 26 April 2012 as Mr Andrews gave evidence or 19 April 2012 which was the applicant’s evidence.
Factual findings
[90] Having reviewed the evidence I make the following findings.
[91] On the applicant’s first day at the Midwest project, prior to his meeting with the Project Manager Mr Louis, Mr Louis did address the Safety Officer in the presence of the applicant in a loud manner regarding the need for the applicant to meet with him before he went on site. I also find that after the applicant had undertaken the induction conducted by the Safety Officer as they walked together past Mr Louis’s office he did shout loudly at them not to leave until the applicant had met with him.
[92] As the applicant explained in his evidence Mr Louis behaviour, about which the applicant was concerned, was directed toward the Safety Officer.
[93] I find that Mr Louis did not act in a loud or aggressive manner towards the applicant.
[94] The likely explanation for Mr Louis’s forceful and loud behaviour was that he viewed it as very important that the applicant did not go on to the work site before he had met with Mr Louis so that Mr Louis could explain to him that he was not going to be working on the site as a TPO.
[95] Mr Louis viewed this meeting with the applicant as important because the situation was unusual and it was important that the applicant understood the situation. He reinforced with the Safety Officer in a forceful manner that this meeting needed to occur before the applicant began work on site.
[96] If the applicant and/or the Safety Officer had forgotten the applicant needed to meet with Mr Louis before going out on site and the applicant proceeded to site believing he was to be working as a TPO this would have created a real safety hazard as a consequence of their effectively being two TPO’s working on the same site.
[97] There is no evidence that supports the applicant’s conclusion that the loud manner in which Mr Louis had behaved was because he had any “issues” with the applicant or that the applicant was a “target”.
[98] With respect to the meeting itself between the applicant, Mr Louis and Mr Owen it is clear from the evidence that this was not a disciplinary or counselling meeting with the applicant of any type. There was no basis for the applicant to interpret the fact that Mr Louis asked Mr Owen the Construction Manager to join them as anything untoward and specifically there was no basis for the applicant to conclude that Mr Owen’s was present to act as a witness.
[99] Self-evidently it was sensible that Mr Owen as the Construction Manager attended the meeting so that he also understood that the applicant was not going to be working as a TPO on the site but only assisting Mr Andrews who would continue to be the site’s TPO.
[100] I find that some time after this meeting the applicant did play the recording he had made of this meeting to Mr Andrews whilst they sat in Mr Andrews vehicle on site.
[101] The applicant made much of the difference in memory between himself and Mr Andrews as to the date on which this occurred however nothing turns on this. The important issue is the finding as to the circumstances in which the applicant played the recorded conversation to Mr Andrews.
[102] With respect to the reason why the applicant played this recording I do not accept the applicant’s explanation that he played the recording to Mr Andrews to clarify for him what the applicant’s role and responsibilities were. The evidence of Mr Andrews which I accept was that he was never confused about this.
[103] Considering the evidence my conclusion is that the applicant’s evidence that he needed to make the recording of the conversation with Mr Louis and Mr Owen either because there was confusion, or to ensure there was no confusion, about his role and responsibilities and that he later needed to play the recording to Mr Andrews for a similar reason, being to clarify the confusion about his role and responsibilities, was a fabrication by the applicant after the event to excuse his actions.
[104] I prefer Mr Andrews’ evidence over that of the applicant as to why he played the recording to Mr Andrews. I find that the applicant, having seen the recording equipment that Mr Andrews used in his vehicle to record safe working conversations, played the recording of the meeting he had with Mr Louis and Mr Owen to demonstrate to Mr Andrews his ability to record conversations whenever he wished with his phone.
[105] With respect to the investigation by John Holland of the applicant’s actions I accept the evidence of Mr Smith that his written accounts of interviews that were conducted with the applicant on Friday, April 27, 2012 and Wednesday, May 2, 2012 are a true record of those interviews 15.
[106] I find that the applicant’s offer of employment dated 21 November 2011 which he accepted and signed expressly states that he is bound by and must comply with the company’s policy and procedures.
[107] One of those policies is the respondent’s Code of Ethics 16.
[108] The Code of Ethics includes an opening statement that the respondent expects all staff and management to act with integrity towards those with whom they have business dealings “...and towards each other”, and continues on to explain that the respondent’s processes are based on compliance with all applicable laws, regulations and statutory obligations relating to behavioural and ethical practices.
[109] The Code of Ethics also refers to “Protecting individual’s privacy by the correct application of workplace surveillance privacy principles.”
[110] I am also satisfied that the applicant was aware of the Code of Ethics and had access to it during the course of his employment.
[111] Finally I accept that on 26 April 2012 Mr Andrews formally wrote to his superiors expressing his concern and upset at the actions of the applicant in having recorded the private conversations of himself and others. Mr Andrews said that he now felt uneasy working alongside the applicant and after spending time with the applicant said it had become clear to him that for the applicant work comes secondary to his surveillance and monitoring of unsuspecting members of the workforce.
Consideration
[112] The legislation sets out the criteria for considering whether an employee’s dismissal was harsh, unjust or unreasonable in section 387 of the Act which is set out below.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[113] The first issue I will determine is whether the recording of the conversation between the applicant and Mr Louis and Mr Owen on 19 April 2012 and/or the transcript of that conversation will be admitted into evidence.
[114] The applicant in support of his action relies upon an unreported decision of Stipendiary Magistrate JG Brown in the Industrial Magistrates Court of Western Australia in the matter of Michael Ernest Game and Air Attention Pty Ltd, Joel Lawrence Dullard and Lawrence Charles Dullard, delivered on 8 February 1996.
[115] This matter involves complaints made by Mr Game of alleged breaches of the then Workplace Agreements Act 1993 (WA).
[116] Mr Game, whom in that matter was alleging breaches of that 1993 legislation is the representative of the applicant in this matter.
[117] Magistrate Brown considered whether tape recordings of conversations that had been made without the consent or awareness of a number of persons should be admitted into evidence at the hearing of the complaints made by Mr Game. Magistrate Brown observed that:
“The key thread which runs through all these cases is the issue of involuntary must, in the sense that an accused person statements should only be admitted in evidence against him or her if they were given without coercion, duress or anything less than the exercise of a free will. The suggested unfairness in the present case is that the defendants were not aware that their discussions with Mr Game were being recorded on tape. In my view, the balance of interests in this case requires that the taped conversations be admitted in evidence.
I take that few primarily because the nature of the discussions, being the entrance of entering into a workplace agreement, is an ordinary day to day event, and the conduct of business in our community. There is a sound public policy basis for treating such discussions as a joint exercise of two or more persons exercising their free will and the fact that one party only was aware of the taping is a lesser public policy consideration.”
[118] Later Magistrate Brown noted that he had not yet heard the tapes but it was clear from the particulars alleged in each complaint made by Mr Game that the content of the discussions taped was likely to be relevant and was central to the alleged offences.
[119] On that basis the Magistrate in that instance admitted into evidence the secretly taped conversations.
[120] The applicant has relied on this decision in support of both his actions in secretly taping the conversation between himself Mr Lewis and Mr Owen and for the Tribunal to accept that tape and/or its transcript into evidence.
[121] As the respondent has pointed out subsequent to the decision of Magistrate Brown, the Western Australian Parliament turned its attention to the public policy issues involved in the recording of private conversations without the consent or knowledge of all the conversing parties and the end point of the Parliament’s considerations was the enactment of the SD Act.
[122] The short title of this legislation says amongst other things that it is an act to regulate the use of listening devices in respect of private conversations and to amend the Evidence Act 1906 (WA) with regard to the transcripts of such recordings.
[123] The SD Act defines a listening device in section 3 as follows:
“...listening device means any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.”
[124] Section 5 of the SD Act set out below prohibits a person using a listening device to record a private conversation, including one to which that person is a party, unless each party to the conversation consents or one party to the conversation consents and it is reasonably necessary for the protection of the lawful interests of that principal party.
“5. Regulation of use, installation and maintenance of listening devices
(1) Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device —
(a) to record, monitor, or listen to a private conversation to which that person is not a party; or
(b) to record a private conversation to which that person is a party.
Penalty:
(a) for an individual: $5 000 or imprisonment for 12 months, or both;
(b) for a body corporate: $50 000.
(2) Subsection (1) does not apply to —
(a) the installation, use, or maintenance of a listening device in accordance with a listening device warrant issued under Part 4;
(b) the installation, use, or maintenance of a listening device in accordance with an emergency authorisation issued under Part 4;
(c) the installation, use, or maintenance of a listening device in accordance with a law of the Commonwealth;
(d) the use of a listening device in accordance with Part 5; or
(e) the use of a listening device resulting in the unintentional hearing of a private conversation.
(3) Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if —
(a) that installation, use or maintenance is carried out in the course of that person’s duty as a law enforcement officer;
(b) that installation, use or maintenance is carried out by that person as instructed or authorised by a law enforcement officer in the course of an investigation into a suspected criminal offence;
(c) each principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance; or
(d) a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.”
[125] Section 5 of the SD Act is applicable in this instance because the applicant was a principal party to a private conversation whom consented to its recording. The question is whether this was reasonably necessary for the protection of the lawful interests of that principal party as provided for in section 5 (3)(d).
[126] Section 9 of the SD Act is also relevant because it prohibits a person communicating or publishing a private conversation that has resulted from the use of a listening device. There are a number of exceptions to this prohibition set out in section 9 (2) and qualifications to these set out in section 9 (3).
“9. Prohibition of publication or communication of private conversations or activities
(1) Subject to subsection (2), a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person’s knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.
Penalty:
(a) for an individual: $5 000 or imprisonment for 12 months, or both;
(b) for a body corporate: $50 000.
(2) Subsection (1) does not apply —
(a) where the publication or communication is made —
(i) to a party to the private conversation or the private activity;
(ii) with the express or implied consent of each principal party to the private conversation or private activity;
(iii) to any person or persons authorised for the purpose by the Commissioner of Police, the Corruption and Crime Commission or the Chair of the Board of the Australian Crime Commission;
(iii) to a designated Commission or to any person or persons authorised for the purpose by a designated Commission;
(iv) by a law enforcement officer to the Director of Public Prosecutions of the State or of the Commonwealth or an authorised representative of the Director of Public Prosecutions of the State or of the Commonwealth;
(v) in the course of the duty of the person making the publication or communication;
(vi) for the protection of the lawful interests of the person making the publication or communication;
(vii) in the case of the use of a listening device or an optical surveillance device in the circumstances referred to in section 5(3)(d) or 6(3)(b)(iii), as the case requires, in the course of reasonable action taken to protect the lawful interests of the principal party to the conversation or activity who consented to the use of the device;
(viii) in accordance with Part 5; or
(ix) in the course of any legal proceedings;
(b) where the publication or communication is made to a member of the police force of the State or of another State or a Territory in connection with —
(i) an indictable drug offence or an external indictable drug offence; or
(ii) any other indictable matter of such seriousness as to warrant the publication or communication;
or
(c) where the person making the publication or communication believes on reasonable grounds that it was necessary to make that publication or communication in connection with an imminent threat of serious violence to persons or of substantial damage to property.
(3) Subsection (2) only provides a defence if the publication or communication —
(a) is not more than is reasonably necessary —
(i) in the public interest;
(ii) in the performance of a duty of the person making the publication or communication; or
(iii) for the protection of the lawful interests of the person making the publication or communication;
(b) is made to a person who has, or is believed on reasonable grounds by the person making the publication or communication to have, such an interest in the private conversation or activity as to make the publication or communication reasonable under the circumstances in which it is made;
(c) is made by a person who used the listening device to record, monitor or listen to that conversation or an optical surveillance device to record or observe that private activity in accordance with a warrant or an emergency authorisation issued under Part 4; or
(d) is made by an authorised person employed in connection with the security of the Commonwealth under an Act of the Commonwealth relating to the security of the Commonwealth.
[Section 9 amended by No. 78 of 2003 s. 74; No. 74 of 2004 s. 72(4); No. 30 of 2006 s. 17.]”
[127] The respondent has directed this Tribunal to a decision of the Western Australian Industrial Relations Commission that has dealt with similar issues. That is the decision of Commissioner Smith in Roderick James Hollis Smith v Saracen Management Pty Limited reported at [2002] WAIRC 05619 delivered on 24 May 2002 (the Saracen decision).
[128] It is not necessary to analyse in detail the Saracen decision other than to observe that I agree with the conclusion the Commissioner came to that in the case of evidence that was obtained in a manner that involved an offence under the SD Act such unlawfully obtained evidence should not be admitted by the Tribunal.
[129] So in this case if I am of the view that the recording of the conversation by the applicant was not reasonably necessary for the protection of the lawful interests of the applicant then the recording of that conversation was made unlawfully and will not be admitted in these proceedings.
[130] In this case the evidence is quite clear that the applicant had quite willingly accepted he would be moved from the Esperance project to the Midwest project. The applicant had not received any form of disciplinary action from John Holland whatsoever regarding events at the Esperance project.
[131] Other than Mr Louis’s behaviour before meeting with the applicant and the reaction of the Safety Officer to this there was no reason for the applicant to have had any concerns about meeting with Mr Louis.
[132] The fact that Mr Louis may have been loud in his dealings with the Safety Officer prior to the conversation with the applicant, may at worst have been rude, but did not objectively suggest that the applicant’s employment was in some way under threat. The applicant had no reason to believe he was being asked to join a disciplinary meeting and it was not a meeting that could in anyway be characterised as such. The applicant’s view that Mr Owen’s attendance was as a witness was a peculiar view of his involvement without any foundation. Objectively there was no basis for the applicant to view the conversation that was to be held with Mr Louis and Mr Owen as one that in some way had the potential to affect his lawful interests. There was no proper basis for the applicant to have concluded at the beginning of that meeting with Mr Louis and Mr Owen that it was reasonably necessary for him to record that conversation to protect his lawful interests.
[133] The applicant argues that past confusion he says he experienced in dealing with John Holland’s staff justified him recording this discussion with the Project Manager Mr Louis. The applicant’s decision to record the conversation however was in the context where he had never had any discussions or meetings with Mr Louis previously. Whatever concerns the applicant had about receiving potentially confusing instructions this objectively did not make it necessary for him to record that conversation to protect his lawful interests.
[134] I find then that there is a prima facie case that the recording of the conversation by the applicant was unlawful under the SD Act.
[135] Consequently I will not admit into evidence the recording of that conversation nor the transcript of that recording 17.
Was the dismissal unfair?
[136] An employee’s dismissal can only be unfair if, amongst other things, that dismissal was harsh, unjust or unreasonable 18.
[137] The Act sets out in section 387 the criteria to be applied in determining whether that dismissal was harsh unjust or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
Valid reason
[138] The applicant’s recording of the conversation with Mr Louis and Mr Owen without their knowledge or consent was prima facie contrary to the SD Act. Separately the playing of that recording to Mr Andrews was not in any way reasonably necessary for the protection of the applicant’s lawful interests. Playing the recording to Mr Andrews was not done to clarify any supposed confusion about his role and responsibilities but rather to show to Mr Andrews how he was able to, and had, recorded conversations on his phone. That being the case playing the recording to Mr Andrews was also prima facie a breach of the SD Act.
[139] Each of these actions of the applicant was a valid reason for his dismissal.
[140] The respondent has also argued that these actions involve breaches of the respondent’s Code of Ethics. That Code of Ethics requires the applicant to act with integrity towards other employees. Recording the conversations as he did without the consent or knowledge of the two other staff involved and separately playing that recording to another person are both actions I agree which were contrary to this obligation. Recording his conversation with Mr Andrews was also contrary to this obligation.
[141] The predecessor to Fair Work Australia, the Australian Industrial Relations Commission, has previously considered circumstances where an employee has recorded workplace conversations without the knowledge and consent of the other employees. This was one element dealt with in the decision of Senior Deputy President Drake in Ron Lever v
Australian Nuclear Science and Technology Organisation 19.
[142] In that decision Senior Deputy President Drake noted the comments of Justice Bryson of the Supreme Court in New South Wales as follows:
“[102] Mr Jauncey referred to a judgement of the Supreme Court of New South Wales in See v Hardman where Justice Bryson said:
“...In terms of ordinary behaviour and conduct when engaged in negotiations I see no room to doubt that it is an impropriety to make a secret recording of a conversation bearing on some business interest or other important interest, such as in this case entitlements to interests in a deceased person’s estate. Such behaviour is of an altogether different kind to making notes during the course of the conversation where others present can observe that notes are being taken, and it is also altogether different to preparing for one’s own use after a conversation a memorandum or note of what one then remembers took place.
In ordinary business and social behaviour there is, in my understanding, a very strong expectation that there will not be a secret recording of a conversation but that any process of recording will be revealed, so as to give those recorded an opportunity to decide whether or not they will participate. If I conjure up for myself what could be expected to happen at the meeting of 10 May 2001 or what could be expected to happen in ordinary and reasonable conduct of persons in this community participating in a business meeting of any kind, I feel no doubt that discovery in the course of a meeting that a secret recording was being made would disrupt proceedings, with a high likelihood that the discovery would lead to the immediate withdrawal of those not involved in making the recording. The view of ordinary reasonable people in Australian society that behaviour of a particular kind is an impropriety is what makes it an impropriety. What the community thinks about secret recordings is, in my view, altogether clear and furnishes the explanation for the enactment of legislation such as the Listening Devices Act, notwithstanding the availability of a quite different view of the significance of making secret recordings.
I understand, both from such events as the enactment of the Listening Devices Act and also from my general understanding of values and behaviour in the community of which I must take notice, that such conduct is not tolerated and is regarded as an extreme impropriety...” ”
[143] Senior Deputy President Drake went on to express her view of the issue as follows:
“[103] Applying ordinary Australian community standards I do not accept that any employee or any employer would be content to have any meeting they were attending secretly tape recorded. The ordinary conduct of personal, business and working relationships in our community is predicated on the basis that if there is to be any record of a meeting it will be agreed in advance. Anything else is quite properly described as sneaky. It’s very sneakiness makes it abhorrent to ordinary persons dealing with each other in a proper fashion.”
[144] The reaction of Mr Andrews to the applicant’s behaviour, that he no longer wanted to work with the applicant, is a good example of the consequences of an employee recording workplace conversations without the knowledge and consent of others in that workplace. The actions of the applicant in this instance have destroyed the trust other employees in that workplace would expect to have in a colleague they work with.
[145] The actions of the applicant were seriously wrong and inexcusable. The relationship of trust and confidence between the respondent and the applicant has been destroyed by the applicant’s actions.
[146] In addition as was made clear in the unchallenged evidence of Mr Smith during the investigation into his actions the applicant was interviewed on 1 May 2012 and asked whether he had recorded other conversations between himself, Ms Lewis and Mr Drew on 7 March 2012 and 5 April 2012. The applicant refused to give a direct answer to those questions. Instead he said he was only willing to answer those questions if John Holland advised him that he had not breached any law and they acknowledged that he was acting in his legal interests.
[147] This response by the applicant at the time implied that the answer to the question was that he had indeed recorded those conversations, however I accept he has denied this in his evidence before this Tribunal.
[148] What remains is that the applicant at the time was deliberately refusing to openly answer a direct question which was pertinent to the investigation the company was carrying out into his actions.
[149] In Telstra Corp Limited v Carlie Streeter 20 the Full Bench of the Australian Industrial Relations Commission considered circumstances where an employee had been uncooperative and dishonest during an investigation into her actions. Her behaviour during interviews included replying to questions asked of her by saying that she had “No comment.” or claiming a lack of memory with respect to certain activities.
[150] The Full Bench in that case held that where the questions in the investigation had relevance to the employees work the employee needed to be honest with the employer and that dishonesty during the investigation meant that the employer could not be confident about that employee’s honesty in the future. The Full Bench also held that the employee had an obligation to answer the employer’s reasonable enquiries honestly and cooperatively 21.
[151] I find then that the applicant’s refusal to answer direct questions as to whether he had recorded other private workplace conversations was a failure to be open and honest and cooperative when the respondent was asking reasonable, pertinent questions and consequently this was also a valid reason for his dismissal.
Other criteria
[152] The evidence is clear that the applicant was notified before he was dismissed of the reasons why the respondent was considering terminating his employment.
[153] It is also clear that the applicant was given a number of opportunities to respond to those reasons including two interviews.
[154] There was no refusal by the respondent to allow the applicant to have a support person present at any discussions relating to his dismissal and indeed Mr Game attended the final meeting as the applicant’s support person.
[155] The procedure followed by the respondent in affecting the applicant’s dismissal was consistent with the large size of the respondent and consistent with the involvement of dedicated human resource management specialists.
[156] The applicant had been employed for less than two years at the time of his dismissal.
[157] The applicant has at no time through the investigation process conducted by the respondent nor during the hearing of this matter demonstrated that he recognises that his actions in recording the 19 April 2012 meeting without the knowledge and consent of the other participants and later playing it to another employee was wrong.
[158] In the circumstances the dismissal of the applicant was neither harsh, nor unjust, nor unreasonable.
[159] The dismissal of the applicant was not unfair and an order dismissing this application will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
W Game, representative for the applicant.
B Gee, solicitor for the respondent.
Hearing details:
2012.
Perth:
October 23.
1 Transcript at PN290.
2 Exhibit A1, attachment 13.
3 Transcript at PN1042.
4 Ibid., at PN349 to 353.
5 Ibid., at PN1069.
6 Hail Creek Coal Pty Ltd v CFMEU [2004] A1RC 670.
7 [2011] FCA 263.
8 Exhibit A1, paragraph 115 and 116.
9 Transcript at PN182 to 185.
10 Ibid., at PN315 and 320.
11 Ibid., at PN317.
12 Ibid., at PN324 and 325.
13 Ibid., at PN523.
14 Ibid., at PN530 to 534.
15 Exhibit R6, annexure MS3 and MS4.
16 Exhibit R5, annexure KL3.
17 Transcript at PN973 onwards.
18 Section 385 of the Fair Work Act 2009.
21 Ibid., at paragraphs 14 to 21.
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