Evidence after Termination of Employment

A recent unfair dismissal claim in the Fair Work Commission found that an employee was not unfairly dismissed as the employee had secretly recorded a meeting with the employer when her employment was being terminated.

The employer was not aware of the secret recording at the time of the termination and only became aware of it when the employee tried to use the recording as part of her evidence in the hearing.

The Deputy President hearing the matter held that the secret recording was in itself a valid reason for the termination even though the employer did not know about it at the time and was not the reason for termination given. The Deputy President referred to other similar matters and noted that such conduct was contrary to the employee’s duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship.

Other cases have also found that an employer can rely upon evidence discovered after the termination even though they were not aware of that evidence at the time.

It should be noted that in Tasmania it is unlawful to make an audio recording of others without their knowledge and consent. However, it should be noted that video recordings, without sound, are not so prohibited.

Many employers do place video recording equipment in their premises for various reasons including security and safety reasons. It is considered good practice to advise the employees that the cameras are in place.