In Altham-Wooding v PKDKAdventures Pty Ltd [2024] FWC 2753, the Fair Work Commission (Commission) found that an employee’s covert recording of a workplace conversation created a valid reason for dismissal. The Commission made this decision despite the employer being unaware of the secret recording until the proceedings before the Commission.
This article summarises the Commission’s findings in this case and how this impacts employers.
What are the facts of the case?
Ms Altham-Wooding (the Employee) was casually employed at Crescent Head Holiday Park to conduct housekeeping and receptionist work. The Holiday Park is owned and operated by PKDKAdventures Pty Ltd (the Employer).
In response to a reduction in work hours in May 2024, the Employee communicated her dissatisfaction to the Employer. Over the following weeks, the employee declined several shifts and left work early twice due to illness and on compassionate grounds. During that time, the Employee’s hours were further reduced, resulting in the Employee again complaining to the Employer. Following this, the Employee received a text message from the Employer seeking to arrange a time to discuss her employment status. The Employee did not respond.
A few days later, the Employee attended the Holiday Park intending to discuss the matter with the Employer. Whilst at the Holiday Park, and without anyone’s knowledge or consent, the Employee secretly recorded her conversations.
After attending the Holiday Park, the Employee sent an email to the Employer detailing her grievance and expressing her desire to discuss the issue. The Employer did not respond. Around this time, the Employee attempted to access the rostering platform to find that her access had been blocked. Two days later, the Employee sent a letter of resignation to the Holiday Park.
The Employee made an application for relief from unfair dismissal. At the hearing, the Employee attempted to tender the recording of the conversations at the Holiday Park, but this was rejected by the Commission on the basis that the recording was made secretly and without notice or consent.
How was the Employee terminated?
The Commission found that the Employee’s employment with the Employer did not come to an end by way of her letter of resignation. Rather, the Commission found that the Employee was terminated by the Employer when the Employer removed the Employee’s access to the rostering platform.
What is unfair dismissal?
The issue before the Commission was whether the Employer’s dismissal of the Employee was ‘unfair’ under the Fair Work Act 2009.
A person has been unfairly dismissed if the Fair Work Commission is satisfied that:
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The person has been dismissed;
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The dismissal was harsh, unjust, or unreasonable;
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The dismissal was not consistent with the Small Business Fair Dismissal Code; and
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The dismissal was not a case of genuine redundancy.
In considering whether dismissal was harsh, unjust, or unreasonable, the Fair Work Commission must take into account:
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Whether there was a valid reason for dismissal that the employee was notified and given a chance to respond to;
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Whether the employee was allowed a support person to assist dismissal discussions;
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Whether, and to what degree, the size of the organisation, and lack of human resources specialists likely impacted on the proper following of dismissal procedure;
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Any other matter the Commission considers relevant.
Was the Employee unfairly dismissed?
No, the Commission found that the employee was not unfairly dismissed. Within the context of harshness, injustice, and unreasonableness, the validity of the reason for dismissal was the sole point of contention. The Commission was satisfied that there was a valid reason. Whilst the other identified criteria were considered, they were uncontentious in favour of the employer.
The Commission made the following general observations about considering whether there is a valid reason for dismissal:
- At [36], valid reasons are “sound, defensible, and well-founded”, not "capricious, fanciful, spiteful, or prejudiced” as established in Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
- The Commission uses the evidence before it to determine whether there was a valid reason for dismissal and it does not matter that the Employer was unaware of evidence relevant to that determination at the time of dismissal or, at [39], even if they did not come to light until after the dismissal per Newton v Toll Transport Pty Ltd [2021] FWCFB 3457.
The Commission was satisfied that the employee’s covert recording of conversations in the workplace lacked justification, was inappropriate, and contrary to the duty owed to her employer to act in “good faith and fidelity”. This determination established a valid reason for dismissal, even though it wasn’t known to the employer at the time, outweighing circumstances potentially alluding to a harsh, unjust, or unreasonable dismissal.
What does this mean for employers?
Whilst circumstances unknown to the Employer in this case worked in favour of the Employer, there is a risk to all employers that there may be evidence, unknown to them, that supports a finding of unfair dismissal.
To mitigate this risk, employers must have a strong understanding of their legal obligations in respect of dismissal from employment, and the relevant circumstances/facts before terminating an employee. It is important that employers ask the right questions of their staff to ensure all relevant information has been obtained and duly considered before making a decision on whether or not to terminate.
Helpfully, the Commission is not constrained to consideration of the information relied upon by the employer in making its decision. A valid reason for dismissal may exist which is sound, defensible, well-founded, not capricious, fanciful, spiteful, or prejudiced, of which the employer is unaware when it makes the decision to terminate.
Holman Webb Lawyers’ Workplace Relations team can assist employers with navigating decisions about how to manage potential terminations. Please don’t hesitate to get in touch.