Employee secret recordings and fair employment investigation processes

In August, the Employment Relations Authority released its determination into the case of an employee who was dismissed for covertly recording co-worker conversations in the workplace when he was not present.[1] 

Where an employee covertly records a conversation that they were not a party to, this may amount to a breach of good faith and/or finding of serious misconduct, leading to disciplinary action. Less known or understood by some employees, is that it may also amount to a criminal offence, leading to a term of imprisonment of up to 2 years. 

The facts of Curnow v Advanced Security Group - employee secret recording and employer disciplinary process 

In Curnow v Advanced Security Group, Mr Curnow was employed as a service technician. He transferred from Christchurch to Nelson, but found upon moving that the office was a difficult working environment, without the sales work he had hoped to get more involved in, and co-worker conflict that predated his arrival. Interpersonal conflict continued, with an allegation of bullying raised, and ‘split allegiances’ observed.  

Mr Curnow had negative interchanges with a Team Leader and ongoing tension was not resolved. Mr Curnow sought a performance appraisal, from his manager which resulted in a complaint by the Team Leader and allegations of him being aggressive. The company sought limited information (from the Team leader’s perspective) and “proceeded to build a case against Mr Curnow”. He was subsequently suspended, without opportunity to comment. During the course of the investigation, Mr Curnow admitted he had covert recordings in the workplace and provided these to the company. The company decided this amounted to serious misconduct and Mr Curnow was dismissed. 

Mr Curnow challenged the dismissal as unjustified. The Authority upheld his claim. Despite the employee’s admission to covert recordings, the employer’s disciplinary process was held to be inadequate, resulting in a an award of three months’ lost wages and a payment of $9,800 for his humiliation, loss of dignity and injury to feelings.[2]  

The Authority pointed out that its finding should not be taken as condoning covert recordings that the employee was not participating in, and the “problematic nature of recording conversations a person is not participating in, without the other party’s permission.” However, it only reduced by 30% the remedies awarded to the employee for his actions which contributed to the situation that gave rise to their personal grievance.   

Lessons for employers 

Regardless of whether an employee admits to allegations that amount to serious misconduct, the more serious an allegation, the more thoroughly an employer is expected to investigate before taking disciplinary action (an action to the employee’s disadvantage). This includes a fair consideration of all the circumstances. In this case, it would have been wise to ask the employee why he felt compelled to record the workplace conversation and to take this into account before reaching a final decision.  

An employer must first consider whether the alleged conduct occurred, before turning to what a fair and reasonable outcome may be in all the circumstances. This could be a range of possibilities. Mitigating and aggravating factors should be considered. It does not automatically follow that serious misconduct will justify dismissal.  

This is a timely reminder to employers that: 

• Employment expectations and processes (including complaints and investigation processes) should be regularly and are clearly communicated to employees. This mitigates the risk of employees selectively collating their own evidence to support an allegation/complaint they consider the employer should be acting on; 
• Where interpersonal tensions, workplace culture issues, harassment or bullying allegations are raised, address them promptly and fairly. The Authority was critical that Mr Curnow was transferred into a dysfunctional team with a complex co-worker conflict not disclosed. 
• Investigation by an independent investigator is advised for complex matters. The Authority was critical that the company elected not to engage an independent investigator; 
• Regardless of an employee’s admission, a full and fair investigation is required, including providing all relevant information to the employee, and taking into account all the circumstances; 
• Where fresh allegations arise during an investigation/disciplinary process, the employee must be put on notice of them and afforded an opportunity to seek advice prior to responding. Their explanation must be considered with an open mind prior to a decision being made. The Authority described the employer’s failure to do so in Curnow as being “inexplicable” in the context of (potentially) criminal allegations. 

The team of specialist employment lawyers at DTI Lawyers are experts in these areas and can assist you with review of workplace practices and independent investigations. Please don’t hesitate to contact us on 07 282 0174, or reception@dtilawyers.co.nz