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Audio Recording Fellow Employee in Workplace

Printed From: AussieLegal
Category: Employment Law, Compensation Law, Negligence
Forum Name: Discrimination, Unfair Dismissal, Asbestos, Negligence
Forum Discription:
URL: https://www.aussielegal.com.au/forum/forum_posts.asp?TID=25071
Printed Date: 22/April/2019 at 10:50


Topic: Audio Recording Fellow Employee in Workplace
Posted By: Crashbandit
Subject: Audio Recording Fellow Employee in Workplace
Date Posted: 10/May/2018 at 15:13
What are the rules and laws surrounding audio recording a fellow employee at a workplace whom you have observed watching and spying on you and you confront that person in the workplace and record the conversation and that person admits they have been watching you even though this is not their job and they are the same level as you doing the same job?

I have read that you can without their consent to "protect your lawful interests" under NSW Surveillance Devices Act 2007 but also there is a Workplace Surveillance Act but I am not sure this also applies to employees rather than employers in the workplace.

Could one use the audio recording and/or transcript in any legal proceedings?



Replies:
Posted By: citizen-joe
Date Posted: 10/May/2018 at 23:23
No problem recording a conversation that you are part of.

But whats your beef, it is not illegal to look at another person?

If it was we would all have to walk around wearing blinkers.


Posted By: Diesel1
Date Posted: 11/May/2018 at 12:15
Generally their is no issue in regards to either video or audio recording conversations or anything for that matter without consent as long as it takes place in a public place. It should not be an issue in most workplace situations where other people could potentially overhear or observe but beware your employer or work contract could specifically prohibit video recording within the premises.

It primarily becomes an issue if the other party can argue that they had reasonable cause to believe their comments or actions were made in private such as in a toilet, changing room or private office. If the recordings were made on the workplace floor amongst other people and your workplace does not specifically prohibit them then it would be unlikely to be an issue.


Posted By: Crashbandit
Date Posted: 11/May/2018 at 16:01
What you are saying is if the recording was in a conference room but no other people present? The legislation below doesn't indicate this.

https://www.smartsafe.org.au/legal-guides/legal-guide-surveillance-legislation-nsw

It is also legal to record a conversation to which a person is a party to if one principal party (e.g. the person recording) consents to the recording of the conversation and it is either:

    reasonably necessary for the protection of the lawful interest of that principal party (see note below),

Whether a recording is reasonably necessary for the protection of the lawful interests of a party is objectively determined, having regard to the lawful interest existing at the time of making the recording.

http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/wsa2005245/ - Workplace Surveillance Act
Doesn't appear to cover employees recording fellow employees or am I mistaken?


Posted By: Diesel1
Date Posted: 11/May/2018 at 17:29
The Workplace Surveillance Act as I understand it legislates the obligations regarding employers carrying out surveillance on employees which is not particularly relevant to your situation. However, I note section(10) still requires the employer to notify the employee that surveillance is intended to be carried out so nothing can happen without the employee first being made aware.

In your initial post you say you recorded a fellow employee admitting to watching/ spying on you. There is no crime in watching you in a workplace as long as it is not in a toilet, changing room or similar and as long as it does not constitute harassment. To have a case there has to be an infringement on your privacy or safety.

Stalking is much the same as spying and is a criminal offence but once again is subject to specific actions. If the other party admitted in a recording that they were stalking you then you may have a case for the police.

A previous poster stated that as long as you where part of the conversation then there is no problem in recording it. I believe that is not correct. Even if it is just you and one other you still need that persons permission to make a recording - preferably recorded at the beginning of the recording - unless the conversation occurred in a public place.

A non authorised recording made to protect your lawful interests requires you to prove that you had reasonable cause to believe that a lawful interest was at risk. I'm not sure that just having someone watching you while at work has crossed the required threshold, but if the other persons actions constitute bullying, harassment or stalking then maybe.

As previously stated, if your recording was made in what would be classified as a public place or where your conversation could reasonably be expected to be overheard by others then there is unlikely to be an issue anyway.

Should your situation clearly develop into a harassment situation then your recording could well prove very handy.

At the moment and if you feel safe to do so then I would suggest you approach the person again (with a witness) and confront them with your concerns.Their response should give you clarity as to the seriousness of the situation and how then to proceed.

Remember, your employer has a legal obligation to supply you with a safe and non threatening workplace. But you also have a responsibility to inform them and give them a fair opportunity to deal with the situation.



Posted By: citizen-joe
Date Posted: 11/May/2018 at 22:08
Originally posted by Diesel1

I believe that is not correct.


OK Diesel, you obviously have not been told today.


Posted By: Diesel1
Date Posted: 11/May/2018 at 22:56
"Not been told what today"?


SURVEILLANCE DEVICES ACT 2007 - SECT 7

(1) A person must not knowingly install, use or cause to be used or maintain a listening
     device:

(a) to overhear, record, monitor or listen to a private conversation to which the person is
     not a party,

(b) to record a private conversation to which the person is a party.


------------------------------------------


"Generally, it is an offence to knowingly install, use or cause to be used, or maintain a listening device to record a private conversation, whether or not the person is a party to that private conversation".

%20 - https://www.smartsafe.org.au/legal-guides/legal-guide-surveillance-legislation-nsw#two


Posted By: Crashbandit
Date Posted: 12/May/2018 at 08:53
https://www.police.nsw.gov.au/crime/domestic_and_family_violence/what_is_stalking - What Is Stalking

an awareness that they are being followed
being continually stared at or gestured to by another person..


This is what is happening but is hard to prove if you are working late at night and just the two of you.


Posted By: Crashbandit
Date Posted: 12/May/2018 at 08:59
Originally posted by Diesel1

"Not been told what today"?


SURVEILLANCE DEVICES ACT 2007 - SECT 7

(1) A person must not knowingly install, use or cause to be used or maintain a listening
     device:

(a) to overhear, record, monitor or listen to a private conversation to which the person is
     not a party,

(b) to record a private conversation to which the person is a party

"Generally, it is an offence to knowingly install, use or cause to be used, or maintain a listening device to record a private conversation, whether or not the person is a party to that private conversation".

%20 - https://www.smartsafe.org.au/legal-guides/legal-guide-surveillance-legislation-nsw#two .


URL is invalid you gave HTTP Error 404.0 - Not Found

http://www8.austlii.edu.au/au/legis/nsw/consol_act/sda2007210.rtf - The Act

(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:
(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or




Posted By: Diesel1
Date Posted: 12/May/2018 at 10:05
You are correct but note: only if

(i) reasonably necessary for the protection of the lawful interests of that principal party,

This is what you have to be able to substantiate.


Posted By: Crashbandit
Date Posted: 12/May/2018 at 10:16
Originally posted by Diesel1

You are correct but note: only if

(i) reasonably necessary for the protection of the lawful interests of that principal party,

This is what you have to be able to substantiate.


My lawful interest is to go to work and not be spied on by fellow colleagues who have no reason to do this and to not be stalked .and also to back up my own suspicions and observations of this person


Posted By: citizen-joe
Date Posted: 16/May/2018 at 21:22
Originally posted by Diesel1

"Not been told what today"?


Afraid you'll have to ask someone else, I'm too polite to say.


Posted By: Diesel1
Date Posted: 16/May/2018 at 23:03
Too polite to admit you gave incorrect advice?



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