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The trouble with secret recordings

Date: 06/07/2017

Claims of a secret recording brought a brutal end to the political career of Parliament’s youngest MP, Todd Barclay.

Since the issue first came to light over 18 months ago, Barclay has consistently denied allegations that he secretly recorded his former staffer, Glenys Dickinson. The Police looked into the matter and declined to lay changes after it was unable to interview Barclay.

However, the matter burst back into life recently when text messages sent by Prime Minister Bill English were reported as referring to Barclay having recorded Dickinson with a dictaphone.

Things then got worse for Barclay when a statement provided by English to the Police was released by his office. The statement referred to Barclay having told English that he had recordings of an electorate staff member criticising him.

Having been contradicted by the Prime Minister, Barclay’s position quickly became untenable and he announced he would step down from Parliament at the election.

The Police have now reopened their investigation into the recording.

Under the Crimes Act, it is permissible to record a communication provided the person making the recording is party to the conversation. The fact the recording is being made does not need to be disclosed to that other party.

However, it is unlawful, and in fact a criminal offence, to record a conversation that the person recording it is not a party to. This is what Barclay has been accused of and what the Police are re-investigating.

Secret recordings are becoming increasingly common in employment disputes. Cases regularly turn on one person’s word against another, so it is no surprise that employers and employees have shown an increased willingness to secretly capture evidence in case they need evidential back up down the line.

However, just because a secret recording may have been lawfully obtained does not automatically mean it will be admissible. As a result, the admissibility of a recording is a matter that will often need to be addressed by the Employment Relations Authority or Employment Court before it can become part of the record.

One example of this was a case between Neil Bosman and Total Access Limited.

Following a meeting between Bosman and the employer’s General Manager, Bosman resigned claiming constructive dismissal. He alleged that during the meeting he was sworn at, interrupted every time he tried to speak, and was shoved in the back by the General Manager when he attempted to remove himself from the meeting.

The matter came before the Employment Relations Authority where Bosman’s recollection of the catch-up meeting was heavily disputed by the General Manager.

It turns out that Bosman had secretly recorded the meeting, in his words to protect himself, and sought to produce the recording as evidence to back up his account of events. Unsurprisingly, the employer objected.

The Authority initially decided to allow the recording into evidence on the basis of its wide powers to receive information, and its view that the recording would provide the best evidence of what happened during the meeting.

But this was not the end of the matter as allegations were subsequently made by the employer that Bosman’s recording had been doctored and was not reliable.

Both sides produced forensic reports seeking to support their arguments. Ultimately, the Authority concluded that given the uncertainty about the accuracy of the recording, its earlier decision to allow the recording into evidence should be reversed.

Bosman’s case nicely illustrates the legal and practical issues that can arise with secret recordings. Employees and employers therefore need to know that a secret recording will not necessarily be a silver bullet that can be relied upon to support their case.

There is also a broader issue of secret recordings arguably being inconsistent with the obligations employees and employers are under to act in good faith, and to not mislead. Finding out that the other party to a conversation has secretly recorded it is a sure-fire way to erode trust and confidence, and to damage the future prospects of a successful employment relationship.