Employee secretly records interactions with employer in FWC case
The Fair Work Commission (FWC) recently dealt with a case involving a casual worker who claimed unfair dismissal from a holiday park after a change in management.
The worker argued that her hours were unfairly reduced, she was excluded from the roster without explanation, and management failed to respond to her attempts to discuss her employment status.
These claims raised questions about the nature of casual employment relationships and the responsibilities of employers in maintaining clear communication with their workers.
The worker had been employed on a casual basis at a holiday park for over 2.5 years, working around 20-25 hours per week. In April 2024, a new company took over management of the park. The worker continued her employment under the new management initially.
Problems began when the worker's hours were reduced. She expressed concerns about the minimal hours and sought reassurance from the new managers.
According to the worker, the employer asked her to "hang in there" and said her hours would increase.
Communication breakdown with new management
Over the following weeks, the situation worsened. The worker's shifts were further reduced, and she was removed from the roster without explanation. When she tried to discuss the matter with the managers, she found them unavailable.
On 2 July 2024, the worker sent an email to the managers expressing her concerns and requesting a meeting to discuss her employment status. The email said:
"To date, no-one from management has reached out to check on my well-being, nor has there been any communication or explanation about my employment status nor my future at the holiday park."
However, the employer did not respond to this email. The manager explained their lack of response by saying, "[The worker] never chose to respond to us, we showed her the same courtesy."
A significant turning point in the case came when it was revealed that in late May, the worker had visited the holiday park office and secretly recorded her interactions using her mobile phone. The employer was unaware of this recording until it was submitted as evidence in the unfair dismissal proceedings.
The FWC found this act of secret recording to be inappropriate and a breach of trust. The decision cited a previous case, stating:
"Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated."
This secret recording became a crucial factor in the FWC's deliberations, significantly influencing the outcome of the case.
In weighing the evidence, the FWC acknowledged that there were aspects of the employer's conduct that supported the worker's claim of unfair dismissal. However, the secret recording was deemed a significant breach of trust.
The Commission said:
"[The worker's] conduct in secretly recording her attendance at the office in the Park was contrary to her duty of good faith and fidelity to her employer and undermined the trust and confidence required in the employment relationship. It provided [the employer] with a sound, defensible and well-founded reason to terminate [the worker's] employment."
The FWC further said:
"[The worker's] secret recording of her attendance in the office at the Park on 28 May 2024 destroyed the trust and confidence in her employment relationship with [the employer]. This betrayal of trust outweighs the facts and circumstances which support [the worker's] claim that she was unfairly dismissed."
Despite finding issues with the employer's communication, the FWC ultimately dismissed the worker's application for an unfair dismissal remedy. The decision noted that even if the dismissal had been found unfair, the worker would likely have only remained employed for a few more days due to her need for regular hours and her subsequent employment at another holiday park.
This case highlights the importance of clear communication in casual employment relationships and the potential consequences of secret recordings in the workplace. It serves as a reminder of the complexities surrounding casual employment and the need for clear policies in managing such arrangements.
