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Secretly recording conversations with the boss is a breach of trust

19 December 2018

National MP Maggie Barry is the latest politician to become embroiled in secret recordings involving her staff.

Former staff have also claimed that while they were employed by Parliamentary Services and should be politically neutral, Barry wrongly required them to do campaign work for the National Party.

The complaints all seem to be anonymously made to the media, which has reported that no formal complaints were made due to fear of jeopardising future employment. It is alleged that Barry for example, swore and yelled at staff, and called an employee stupid.

It is interesting that conversations with Barry have been recorded. At least some of the conversations seem to have been recorded without her knowledge.

Politicians are being caught out by secret recordings more and more. Earlier this year Jamie-Lee Ross released secret recordings of conversations with National Party leader Simon Bridges and in 2017 former MP Todd Barclay stepped down from Parliament after a dispute that he secretly recorded a staff member.

In employment, both parties are expected to act in good faith and in a way that promotes trust and confidence.

The Labour government under Helen Clark created a statutory definition of good faith that requires employers and employees to be active and constructive and not mislead or deceive each other.

All of that makes sense. The future of an employment relationship is always dependent on both parties trusting each other.

But life is not that simple. Despite good faith, employees often secretly record disciplinary meetings or other incidents. Disciplinary action, including dismissal, often follows.

However, when the secret recording is reviewed it may portray a different account to what the employer put in their dismissal letter, leading the employee to challenge the decision.

If the recorded information is obtained in breach of good faith, should an employee be able to rely on a wrongful recording to bring a case against their employer? Should it be available to a court when determining an employment dispute? On the other hand, isn't it in the interests of justice that the most truthful and accurate information be put before the courts?

A Court of Appeal decision involving 124 Air New Zealand pilots looks at the competing interests.

The pilots brought proceedings in the Employment Court against the airline in a case relating to annual leave entitlements. There was a telephone call between an Air New Zealand representative and a union representative. Unbeknown to the employer's representative, other union pilots were listening in by speaker phone and the call was recorded and later transcribed.

Should the evidence be admissible? In this case it was, but Justice Richardson said that each case depends on its facts. In some circumstances, surreptitious recording of conversations may undermine the trust and confidence that is at the heart of good working relations between employer and employee.

However, no evidence of the recording breaching trust and confidence was put before the court by the employer and the transcription was admitted as evidence.

Earlier this year the Employment Relations Authority heard a case where an employee, was dismissed for secretly recording a disciplinary meeting.

The employer, Canterbury Concrete Cutting NZ Ltd, said that the employee had breached the good faith requirements of his employment agreement by secretly recording the meeting, and dismissed him.

They also alleged that the employee had played the recording to both a former and current employee and provoked the employer's representative to anger deliberately for the recording.

The authority found that the employee did not ask to record the meeting from the outset as he should have, but instead recorded it covertly. Even so, the authority found that the employee's conduct, while it breached good faith, was not serious misconduct. The employer had also not provided the necessary information or been procedurally fair.

The employer was required to pay the employee around $28,000. However, the employee was ordered to pay a penalty of $2000 for breaching good faith by taking the covert recording. The penalty was paid to the Crown so the employer got none of the money.

Should an employee be dismissed for making secret recordings at work that breach good faith? Or should they be able to record and later produce what really happened, even though they have not told the other person they are being recorded?

Secret, covert behaviour in an employment relationship breeds distrust; the antithesis of the trust and confidence the courts encourage. By the time one party secretly records the other, the employment relationship is probably irrecoverable.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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