Employment

Secure Jobs Better Pay Act – Key Amendments: Sexual harassment in the workplace

7 March, 2023

Performance management and disciplinary meetings are often confronting for employees. Unfortunately, they can become acrimonious affairs, and employees may lose trust in the managers or other personnel involved. To the employee, it may be important to have a “true” record of the meeting, either to vindicate their claims that the manager was bullying them or to prove that they raised an issue and the employer did not provide them with adequate supports to improve their performance.

Sometimes, an employee may decide to “wear a wire” to capture what they perceive as an exculpatory conversation with their employer. In an age when watches and mobile phones can be covert recording devices, there are a few things to be aware of if private meetings are recorded.

The law

Laws exist in each state and territory to regulate the use of surveillance devices. These laws provide criminal offences for conducting surveillance and for related activities, in particular for communicating information obtained under surveillance.

In Western Australia, covert audio and video recording is governed by the Surveillance Devices Act 1998 (WA) (the Act). Similar legislation exists in other Australian jurisdictions. The legislation in other states contain different defences. Other relevant State/Territory legislation is:

I note that during the committee stage of the Surveillance Devices Bill, Mr Kobelke MLA referred to a situation where an employee used a tape recorder to record his conversation with his employer when the employer abused him and told him the grounds on which he was to be sacked – which were not legal grounds for sacking. The Minister in charge of the bill, Mr Prince, said that the conversation and did not disclose this use to his employer, he was protecting his lawful interest…

That case concerned an employee who made a recording of their manager. The employee had a claim under equal opportunity legislation that the employer terminated her employment because she was pregnant. On appeal, the employer did not challenge that the recording was in the public interest and/or for the protection of the employee’s lawful interests: Channel Seven Perth Pty Ltd v “S” (A company) [2007] WASCA 122 [9].

In a later decision, Allanson J listed a number of factors to consider whether a recording was in a party’s “lawful interests” in Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 [16] (citations omitted, emphasis added):

The term ‘necessary’ is capable of a wide range of meanings. There is, in Australia, ‘a long history of judicial and legislative use of the term “necessary”, not as meaning essential or indispensable but as meaning reasonably appropriate and adapted’. In the context of s 5, particularly qualified by the word ‘reasonably’, it should be construed as meaning appropriate, but not essential or unavoidable.
The word ‘reasonably’ imports an objective test.
Whether the use of the device is reasonably necessary is to be judged on the circumstances that existed at the time of the use.
The ordinary meaning of ‘protection’ as shelter, defence or preservation from harm, danger, or evil is apt in the context of s 5.
Lawful interests may be distinguished from ‘legal interests’. Section 5(3)(c) does not require a legal interest in the sense of a legal right, duty or liability. A recording made where a serious dispute has erupted and there will be a dispute as to different versions of an arrangement may give rise to a lawful interest. Generally, a finding depends on the circumstances of the particular case.

There are cases where the mere desire to have a reliable record of the conversation is not sufficient: Legal Profession Complaints Committee v Rayney [No 2] [2018] WASAT 5 [40]. In other cases, Courts have found it was “reasonably necessary” for someone to make a covert recording to protect their interests should something go “wrong”: Navabi v Ghasemi [2019] WADC 1 at [22] – [25].

It will very much depend on the circumstances at the time of the recording. We suggest that if an employee is told they:

are not to repeat what is said to them during the meeting because it is confidential and may adversely affect other persons mentioned;
are allowed to take notes; and
may have a support person take notes for them,

it may not be “reasonably necessary” for the employee to make a recording. Certainly, if the employee is told they cannot make a recording and the other persons present do not consent to them recording the meeting, it is unlikely to be “appropriate” and therefore objectively “reasonable”.

b) if the recording was in the “public interest”

If the employee reasonably believes (at the time they made the recording) that the recording is in the “public interest”, they will have a full defence. The definition of “public interest” in the Act is not exhaustive, but indicates that Parliament intended for the term to mean something with far-reaching public consequences (s.24):

… the interests of national security, public safety, the economic well being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.

The test for this defence was analysed in Pihema v The State of Western Australia [2017] WASC 282, where Jenkins J listed seven factors to consider. Importantly, it is not sufficient for the employee to say they believed the recording was in the public interest; they must have a basis for that belief, and the belief must be reasonable. If the employee only had a subjective belief that the recording was in the public interest, this defence will fail (at [29] (citations omitted, emphasis added)):

the word ‘reasonably’ imports an objective test. That is, there must be objectively reasonable grounds for believing that the use of the listening device is in the public interest;
for s 26(1) to apply there must be facts which are sufficient to induce in a reasonable person a belief that the use of the listening device is in the public interest;
it must appear to the judge determining legality, not merely to the person using the listening device, that reasonable grounds for believing that the use of the listening device is in the public interest exist;
it is not necessary that the judge holds that belief;
the objective circumstances do not need to establish on the balance of probabilities that the use of the listening device is in the public interest. ‘Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture’;
the determination of whether there are ‘reasonable grounds for believing that the use of a listening device is in the public interest’ is to be undertaken by reference to the facts and
circumstances existing at the time of the use of the listening device; and
what constitutes the ‘public interest’ must be ascertained by the application of the statutory definition of that phrase to the facts and circumstances of the particular case.

c) the hearing was “unintentional”

If the employee demonstrates that they did not intend to record the conversation but the recording was made anyway, they will have a full defence. We have all experienced times where our mobile phones call somebody or do something seemingly of its own initiative. An employee may say that the recording was “unintentional”. It will fall to the decision maker to find whether their account is plausible in the circumstances. If the employee only ‘accidentally’ recorded conversations with their manager and not other conversations, this may tend to disprove their contention that the recording was “unintentional”. If the employee made a series of recordings unintentionally before the subject recording, this may tend to support their argument. If other unintentional recordings only occur after the subject recording, this may tend to disprove the employee’s defence.

d) each party consents to the conversation being recorded

Consent can be express or implied. If consent is implied, a decision maker (such as the Fair Work Commission) will look at the circumstances and assess whether each party to the conversation gave consent. Obviously, if any party to the conversation says “I do not consent to being recorded” or words to that effect, consent is expressly refused and cannot be implied unless the person says something subsequently to give consent.

Is it admissible?

The Fair Work Commission is not bound by the rules of evidence and may exercise its discretion to receive or reject evidence: Fair Work Act 2009 (Cth) s.591. However, the rules of evidence are observed by the Commission in appropriate cases. The Commission will often feel bound by s.138 of the Evidence Act 1995 (Cth), which permits illegally obtained evidence in cases where the “desirability of admitting the evidence outweighs the undesirability of admitting evidence”.

The starting point is that an illegal recording should not be admitted. Desirability of an illegal recording is unlikely to outweigh the undesirability unless the recording provides quite conclusive evidence in support of the party’s case.

Parties should be very careful to rely on a covert recording because the Full Bench has noted that the making of a covert recording is itself a valid reason for dismissal: Schwenke v Silcar Energy Solutions [2013] FWCFB 9842 [3].

The Commission has made other, strong comments about covert recordings and their corrosive effect on the employment relationship ((Gadzikwa v Department of Human Services [2018] FWC 4878 [83]) (emphasis added)):

Unless there is a justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction. The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.

Generally speaking, it is possible to rely on facts that come to light after a dismissal to justify the employer’s decision to terminate. If faced with a covert recording in an unfair dismissal claim, it may be possible to rely on that as a reason for terminating the employment in any event.

Comments

Whilst this article covers the law in relation to WA, each state and territory has slightly different legislation that needs to be considered. Specific legislation regulating the use of surveillance devices in the workplace applies for the ACT, NSW and Victoria.
Generally speaking, it will be the employee who makes a covert recording of a meeting. However, it will also be an offence for an employer or manager to make a covert recording of a
meeting with an employee (unless they obtain consent). A covert recording may tend to validate an employee’s claim of unfair treatment, as well as have other implications for the employer and manager.
Ensure that your relevant policies say that performance management and disciplinary matters must be kept confidential, and that divulging what is discussed in these meetings is regarded as misconduct.
At the beginning of a performance management meeting, tell the employee that the meeting should not be recorded, but you will be taking notes and they may take notes or have a support person to take notes.
When a support person is present, if you believe it is relevant, tell them that they can make notes but are not to make a recording of the meeting because the issues are confidential and should not be discussed with anyone except for the person’s union or legal representatives.
Behave as though you are being recorded. Do not say anything in a disciplinary or performance management meeting that you do not want recorded.

This case law update is intended for general information only and you should not act upon it or omit to act on the basis of anything contained herein without first obtaining legal advice in relation to any particular matter or issue.

published by

Tim McDonald

Principal

contributors

Barnaby Austin

Senior Associate

Lauren Colless

Associate

Recent Insights

View all

Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan

29 August, 2023

Government

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes

18 August, 2023

Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay

10 August, 2023