Tape Recordings

A guide for employers and managers
A-Z of Employing - published by EMA ADVICE

In this guide to Tape Recordings:
OVERVIEW INTRODUCTION PRIVACY ADMISSIBILITY EMPLOYERS & MANUFACTURERS ASSOCIATION (NORTHERN) INC 159 Khyber Pass Road Grafton, Auckland New Zealand. Private Bag 92066 Auckland 1142. MUTUAL OBLIGATIONS EMPLOYMENT AGREEMENTS CONCLUSION 2 2 2 3 4 5 5

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Tape Recordings
OVERVIEW

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Secret tape recordings may not always contravene the principles contained in the Privacy Act 1993. Employers and employees who secretly tape conversations in contentious situations may breach the mutual duties of trust, confidence, fair dealing, and good faith. Whether or not an employer or employee has breached its respective obligations is determined on the particular circumstances of the matter.

INTRODUCTION
This A-Z Guide deals with tape recordings of conversations that are made secretly. The law in relation to secretly made tape recordings is constantly evolving, and each case is determined on its merits. As such, it is impossible to make generalisations with regard to when it is acceptable to secretly record a conversation and when it is not. However, this guide traverses the current law to give you some guidance on the topic as it stands now. There are several implications of secretly tape recording conversations. The first is privacy. Secretly recording a conversation may prove to be a breach of the Privacy Act 1993; much of the case law on this issue has been the subject of academic and judicial criticism because of the lack of understanding of the Act demonstrated by legal practitioners. untested. The second implication is admissibility. There is no guarantee that a secretly taped conversation In deciding whether or not to admit such evidence the While secret tape recordings may not breach Information Privacy Principle 3 or 4, whether or not it breaches Principles 1 or 2 has been relatively

between an employer and an employee will be admitted into evidence before the Employment Relations Authority or Employment Court. Authority and Court will examine a number of factors, the primary one being fairness. If you want information about the use and disclosure of information recorded on tape, secretly or otherwise, then you should refer to the following A-Z Guides: Privacy Surveillance

PRIVACY
The effect of the Privacy Act 1993 on secret tape recordings was examined by the Court of Appeal in Harder v Proceedings Commissioner [2000] 3 NZLR 80. In this decision, the majority of the Court found that secretly recording a telephone conversation did not breach the Privacy Act 1993. It should be noted here that the argument in this case was limited to Information Privacy Principles 3 and 4.

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The Court found that secretly recording a telephone conversation does not automatically breach Principle 3. This principle is concerned with the collection of the information, not the manner in which it is collected. So it is enough that a person knows that information is being collected; they do not necessarily have to know about the manner in which it is being collected. In the Harder case, answering questions was held to be enough for a person to know that information was being collected. Principle 4 deals with the manner of collection of personal information. information shall not be collected: By unlawful means; or By means that, in the circumstances of the case, intrude to an unreasonable extent upon the personal affairs of the individual concerned. In the Court’s majority decision in Harder it stated: “The primary purpose of this provision is to prevent people from being induced by unfair means into supplying personal information which they would not otherwise have supplied” The issue of fairness in secretly tape recorded conversation is determined on a case by case basis because of the different individual circumstances that may apply. In this case, the tape recording of a conversation between a defence lawyer and a witness for the prosecution was deemed to be, not unfair. It states that personal

ADMISSIBILITY
The admissibility of secretly tape recorded conversations and/or the transcripts of these, is also determined on a case by case basis. In Talbot v Air New Zealand [1995] 2 ERNZ 356; the Court of Appeal said: “Between employees and employers there are reciprocal obligations of fidelity, confidence and fair dealing…There may well be cases where tape recording is a breach of the duty of fair dealing – for instance as regards at least some conversations, the use of a concealed body microphone to record face-to-face conversations…..but the subject does not lend itself to generalisations.” In this case the transcript of a telephone conversation was admitted, because although the person being recorded was not aware of that fact, he was aware that he was on speakerphone and that two other people were listening. The issue of admissibility of secret tape recordings has also been discussed by the Employment Relations Authority. In Simms v Santos Mount Eden Limited (Unreported) AA 254/03; 21 August 2003; J Wilson; the applicant (the employee) sought to introduce the tapes and transcripts of two conversations with his former employer that he had secretly recorded. It was submitted that the tapes and transcripts were necessary to support his view of the contested events. The Authority determined that:

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“It is clear that whether or not I accept the tape recordings as evidence in this case is fundamentally a question of fairness. On the one hand it can be argued that in recording his conversations with Mr Escalante Mr Simms undermined the relationship of trust, confidence and fair dealing which is a fundamental tenet of the employment relationship…On the other hand to deny Mr Simms the opportunity of supporting his version of the conversations with the recordings he made at the time could be construed as unfair to him.” And: “While many may find the secret recording of a conversation unacceptable or even abhorrent these considerations are not those to be taken into account in deciding whether or not to accept such recordings as evidence. The overriding principle must be that of fairness – both to the applicant and to the respondent.”

MUTUAL OBLIGATIONS
Employers and employees are bound by the mutual duty of trust and confidence and good faith. It has been argued that secretly recording conversations is a breach of these obligations. In Talbot the Court of Appeal indicated that there are circumstances when secretly taped conversations would undermine trust and confidence and breach the standards required in employment relationships: “In some circumstances the surreptitious recording of conversations may undermine the confidence and trust that is at the heart of good continuing working relations between employer and employee and their representatives and breach acceptable standards in employment relations”. The Court of Appeal considered the duty of good faith in Coutts Cars Limited v Baguley [2001] ERNZ 660; and said: “We do not see that the new statutory obligation on employers and employees to deal with each other in good faith introduces any significantly different obligation to that the Courts have placed upon parties to employment contracts over recent years. Undoubtedly the duty to deal in good faith will have an impact in additional areas such as negotiations and collective environments, but in the area with which we are presently concerned we consider the law already required the observance of good faith.” In Simms the Authority viewed the different arguments put forward as to the effect of these different duties as being a moot point. It said: “It may be that in other circumstances the duty of good faith may impose a greater obligation than the previous duty of fidelity, confidence and fair dealing. Until these duties and obligations are more clearly defined by subsequent Court decisions, the Court of Appeal decision in Talbot must provide the benchmark on which to determine the case before me…As the Court of Appeal made abundantly clear each case must be decided on its particular circumstances.”

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EMPLOYMENT AGREEMENTS
An employment agreement may contain any provisions that an employer and employee agree on, so long as the agreement meets the requirements of the Act. The inclusion of a clause that deals with secret tape recordings may be appropriate, even desirable, in some circumstances and may serve as a deterrent against such conduct. Such a clause could provide that neither party shall, in any circumstances, secretly record any conversation between: The employer and the employee; or The employer and any person connected with the affairs of the employee; or The employee and any other employee of the employer. This clause may be enhanced by providing for its breach; an employer could consider the breach of this to be a serious breach giving rise to cancellation, or, alternatively could consider its breach to be serious misconduct. The employee, under such a clause, could consider the conduct of an employer in breach of it to be a serious breach allowing him or her to cancel the agreement. If you want advice or assistance with the drafting of your employment agreements, or clauses such as this, contact your EMA Advice Employment Relations Consultant.

CONCLUSION
Under the law as it currently stands, the Employment Relations Authority and the Employment Court allows the admission of secretly recorded conversations into evidence; however each case must turn on its own merits. The primary consideration is fairness. If you are faced with a situation involving the secret tape recording of a conversation you should seek independent and specialist advice to determine how best to handle that situation.

Remember: Always call AdviceLine to check you have the latest guide (refer to the publication date below). Never hesitate to ask AdviceLine for help in interpreting and applying this guide to your fact situation. Use our AdviceLine employment advisors as a sounding board to test your views.

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Get one of our consultants to draft an agreement template that’s tailor-made for your business. Visit our website www.emadvice.co.nz regularly. Attend our member briefings (held every 4 months) to keep up to date with all changes. Send your staff to EMA Learning courses and conferences designed for those who manage employees.

[Publication date: June 2007]

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