Recorded Conversations Can Be Admissible in Employment Disputes
- Business Central
- Oct 23, 2024
- 3 min read
Updated: Nov 5, 2024
Ms Downer was employed by LM Architectural Builders Ltd (LM Architectural) as an administrator. She raised a personal grievance for unjustified dismissal and unjustified disadvantage at the Employment Relations Authority (the Authority). As part of her evidence, Ms Downer presented two recordings of conversations. The Authority had to decide if the recorded conversations could be admitted as evidence.
The first recording was a conversation between Ms Downer and Mr Meredith. Although the recording was made without Mr Meredith’s knowledge, Ms Downer was a party to the conversation, so it was not deemed illegal. During the conversation, Mr Meredith alleged that Ms Downer was editing her CV during work hours, which he considered serious misconduct. He offered her two weeks’ pay to finish work (presumably immediately). Ms Downer did not dispute the allegation, said she was happy to remain working until she found a new job, and would consider Mr Meredith’s offer. Mr Meredith warned he would take disciplinary action if she did not accept the offer.
Mr Meredith alleged that this conversation was inadmissible because it was without prejudice. If the conversation was without prejudice, it would be privileged and therefore inadmissible. For there to be a valid without prejudice conversation, there must be a dispute between parties; any conversation that followed to resolve the dispute would be considered private.
LM Architectural argued that the first recording involved an offer to settle matters, making it without prejudice. It also referred to the Employment Relations Act 2000 (the Act) that stated that without prejudice privilege applied to statements made in relation to personal grievances. However, the section it relied on referred to actions for defamation, which was not the case here. Ms Downer argued that the first recording was not without prejudice, as there was no express reference to it being so, nor was it intended to be private or confidential. Rather, it was intended to constructively dismiss her.
The Authority noted that communication did not need to be labelled or referenced as being without prejudice for it to attract privilege. The Authority determined that the conversation was not a without prejudice communication. It was simply an allegation of the misuse of company time and a threat to take disciplinary action. The first recording was therefore determined to be admissible as evidence.
The Authority then turned to the admissibility of the second recording, which involved a telephone conversation between Mr Meredith and a third party that happened on the same day. Ms Downer had left her phone on her desk with the record function operating. She claimed she did this to protect herself from the accusations made by Mr Downer earlier. The Authority assumed from the nature of the conversation, and the fact that no one else was present at the time, that Mr Meredith was having a private telephone conversation with a third party.
The Authority first turned to the legality of the second recording. Although it was illegal under the Crimes Act 1961, this was not the Authority’s concern. Rather, it had to determine whether the recording was improperly obtained. Given the secretive nature of the recording, and Mr Meredith thinking he was sharing a private conversation, the Authority concluded it had been improperly obtained.
Unlike criminal trials, there is no presumption that improperly obtained evidence was inadmissible in the Authority, as made clear in the Act and the case Firman v Insyn Ltd t/a Synergy Hair Riccarton. The Evidence Act 2006 also did not apply to the Authority. However, the Authority, in light of its roles and powers, found that improperly obtained recordings went against good-faith behaviour, did not sit well with equity and good conscience, and was a breach of a person’s privacy.
If the second recording was admissible, it could compel Mr Meredith to give further evidence about the conversation, including who he was speaking to and what was said by that third party. There was also a stronger prejudicial impact weighing against the second recording being admitted as evidence. On the other hand, it might have significant probative value. The Authority therefore concluded that the second recording was inadmissible. All references were to be removed or redacted from the material already lodged with the Authority, and no further references to it were to be made. Costs were reserved.
Downer v LM Architectural Builders Ltd [[2024] NZERA 204; 08/04/24; P van Keulen]
