Can an employer or employee who secretly uses a voice recorder (for example during a disciplinary meeting) use that recording as evidence in the Employment Relations Authority?
The employer is not permitted to use secret voice recordings.
The Privacy Act (Principle 3) states that if an employer is collecting information from an employee, the employer must advise the employee that the information is being collected by a voice recorder.
The employee may, in certain circumstances, be permitted to use voice recordings obtained secretly:
The Employment Relations Authority must consider all the evidence even if some of it has been recorded secretly (Lee v System Controls Limited, ERA, May 2014). The Employment Court will conduct a balancing act and will ask if the importance of the information outweighs the secretive manner of its collection.
Although the Privacy Act (Principle 4) prohibits collection of information by unfair means, the Privacy Act does not apply to an individual who is collecting information for that individuals personal, family or household affairs. An individual could argue that his or her employment is an integral part of these affairs.