How to conduct a workplace bullying investigation – Tips and Traps – Part 3
In Part 1 of this series, I discussed the investigator’s role and how to collect evidence. If you missed it, you can read that article here.
In Part 2, I discussed dealing with the complainant, witnesses and respondent. If you missed it, you can read that article here.
In Part 3, I am going to discuss an emerging issue in investigations, covert recordings.
It is becoming more and more frequent with the proliferation of smart phones with digital recording capabilities that employees are producing covert recordings of meetings and conversation to workplace investigators.
But can they be utilised in a workplace bullying investigation given that the recordings were made without the knowledge and/or consent of the other party(s)?
In Queensland, recordings of this nature are subject to the Invasion of Privacy Act 1971 (Qld) (“IP Act”).
Section 43 of the IP Act provides as follows:
“ 43 Prohibition on use of listening devices
(1) A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.
(2) Subsection (1) does not apply–
(a) where the person using the listening device is a party to the private conversation;
It therefore appears that such recordings will ordinarily be lawful.
However, the IP Act also restricts the use to which such recordings can be made, except for certain prescribes purposes. In particular, section 45 of the IP Act provides as follows:
“ 45 Prohibition on communication or publication of private conversations by parties thereto
(1) A person who, having been a party to a private conversation and having used a listening device to overhear, record, monitor or listen to that conversation, subsequently communicates or publishes to any other person any record of the conversation made, directly or indirectly, by the use of the listening device or any statement prepared from such a record is guilty of an offence against this Act and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.
(2) Subsection (1) does not apply where the communication or publication—
(c) is not more than is reasonably necessary –
(i) in the public interest; or
(ii) in the performance of a duty of the person making the communication or publication; or
(iii) for the protection of the lawful interests of that person; or
(d) is made to a person who has, or is believed, on reasonable grounds, by the person making the communication or publication to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made
It appears that a number of these sub-sections will be sufficient to justify the provision of the recordings to an investigator of alleged workplace bullying.
There is, however, a further issue as to the probative value of covert recordings.
There is no doubt that recordings can be useful in resolving disputes about the tone and content of verbal interactions. They are certainly an objective record of what was said and how it was said.
However, some caution ought to be exercised when assessing the probative value of a covert recording because they can also be used as a “set up”. This issue was discussed by Senior Deputy President Richards in the case of Kharb v Eastfield Pty Ltd T/A BP Duaringa  FWC 6403 in which his Honour observed [at 23]:
“So far as one party is placed in a position of knowledge (of the recording) and the other party is unaware of the situation, issues may arise as to how the knowing party constructs the conversation and manufactures his/her responses. Some care, therefore, is required in the approach to materials such as the transcript now before me”.
As such, the content, tone and circumstances of the recording needs to be carefully considered when determining how much weight out to be placed upon such a recording.
In Part 4 of this series, I will discuss preparing the investigation report.