Talk as if you're being recorded

PETER CULLEN
Last updated 05:00 22/07/2014

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OPINION: Few readers will have heard about the plight of a Ms Gosain who until recently worked for the Punjab National Bank in England.

Gosain raised some concerns with her employer. As a result, she attended a disciplinary and grievance meeting with her employer in an attempt to resolve the issues.

Gosain was present for the whole meeting. However, she left the room while representatives of her employer deliberated on what to do. The outcome of the meeting was evidently unsatisfactory as Gosain resigned soon after.

Gosain sued the bank for sexual harassment, sexual discrimination and constructive dismissal.

When the matter went to the English Employment Tribunal, it emerged that Gosain had secretly recorded the meeting. The recording also covered the employer's private deliberations which occurred after Gosain left the room.

Gosain believed the recordings showed that wholly inappropriate comments were made including that a manager had said she should be dismissed and that another manager was deliberately ignoring issues that she had raised.

Gosain sought to use the recordings to bolster her claims. The employer unsurprisingly objected to the recording of its private deliberations being included.

The matter went to the Employment Appeal Tribunal which decided that the recordings should be admitted. It believed that the employer's recorded comments showed that it took into account inappropriate matters during its deliberations.

These same issues arise in New Zealand. An employer or an employee may wish to secretly record a meeting. But do you agree with this practice? Many might find it deceitful and repugnant.

Parties to an employment relationship have an obligation to behave in good faith and not mislead or deceive each other. An employment relationship, particularly if it is to be ongoing, relies heavily on trust and confidence.

Isn't it better for employees or employers to be open and honest about what they are doing and not secretly record meetings? However, when that has happened, a hard decision has to be made by the court or authority about whether to admit the evidence.

The Employment Relations Authority and the Employment Court have the power to take into consideration any evidence that they in equity or good conscience think fit. This, however, requires balancing competing interests. On one hand, a court or tribunal will want to get to the truth of the matters in dispute and will seek the best evidence available for it to make a determination. On the other, courts don't want to encourage employees or employers to secretly record their interactions and reward sneaky or deceptive conduct.

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Richard Simms worked at the Santos Restaurant in Mt Eden until he resigned in 2002. He subsequently brought a claim in the Employment Relations Authority alleging that he had been constructively dismissed by his employer.

Simms tape-recorded his conversations with the owner of the Santos Restaurant - Alex Escalante. The recordings were of a telephone conversation and a face-to-face meeting. During the conversations, Escalante effectively told Simms that he could either resign or be fired.

The recordings were made without Escalante's knowledge. He strongly objected to their production in the authority.

The authority weighed up the fairness to both parties of allowing the recordings to be admitted. It was conscious that the recording might have undermined the trust and confidence in the employment relationship. It also noted that Escalante may have been more guarded had he known he was being recorded when talking to Simms.

However, the authority was ultimately swayed by the potential unfairness of preventing Simms from supporting his version of events. The recordings were admitted as evidence.

It is preferable that people speak truthfully. There is a chance that what is said in the workplace might end up in a court of law. Accordingly, readers should be prepared for what they say being quoted back to them at a later date.

Peter Cullen is a partner at Cullen - the Employment Law Firm. He can be contacted at peter@cullenlaw.co.nz.

- Stuff

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