She secretly recorded her manager, and it cost her reinstatement

What happened

Ms Chandler started as a casual sales assistant at Bed Bath N' Table's Essendon store in Melbourne on 25 June 2018. Until January 2019 she usually worked around 20 to 25 hours a week. The employer accepted she had never been disciplined or warned about anything.

In early 2019 her hours dropped. She was off sick with the flu for two days in February and texted the store manager to say so, as she usually did. The company's handbook said absences had to be reported by phone and that a text was not acceptable. In the middle of February the employer decided to give her one shift a week while it considered her availability and reliability.

The meeting she recorded

On 26 February 2019 Ms Chandler arrived at work, unwell, and found she had been rostered for just one five-hour shift a week in March. The store manager told her the regional manager was coming in and wanted to talk to her. While she waited in her car, she decided to record the conversation on her phone. She did not tell anyone.

Afterwards she sent the regional manager several emails setting out her complaints, one of which opened by thanking her for pointing out "the error of my ways". The regional manager later said Ms Chandler had been aggressive and that she had felt threatened. Ms Chandler also recorded a phone call with the national HR manager two days later, again without saying so.

A disciplinary meeting she could not attend

On 27 February the HR manager sent her a letter of allegations and called her to a meeting on 1 March at 10am. Ms Chandler named a co-worker as her support person. HR refused, saying that person was part of the investigation, and would not move the meeting. HR told her, twice in writing, that if she did not attend she would be suspended without pay until she did, and claimed the Fair Work Act required only 24 hours' notice.

Ms Chandler said she could not attend and asked for more time. The company did not suspend her. It dismissed her by voicemail and email the same day, for failing to report her absence properly, for her conduct at the 26 February meeting and for the tone of her email.

What the Commission decided

Bed Bath N' Table first argued that, as a casual, she was not protected from unfair dismissal at all. A Full Bench of the Commission rejected that in January 2020: she had worked on a regular and systematic basis and had a reasonable expectation that her work would continue.

On the merits, s 387 of the Fair Work Act 2009 (Cth) lists what the Commission must weigh, starting with whether there was a valid reason for the dismissal, meaning one that is "sound, defensible or well founded". None of the employer's three reasons passed. She had texted her absence the way she always had without being told off. Commissioner Lee listened to the recording and found it did not support the regional manager's account: the talk was "robust", but not aggressive or disrespectful. Apart from one sarcastic sentence, her emails were a forthright statement of her concerns.

The recordings were a different matter. The Commission can look at any valid reason shown by the evidence, not just the one the employer gave. Commissioner Lee did not accept she had been genuinely fearful, and found she could have asked permission to record. The covert recordings were "inappropriate and damaging of a relationship of trust and confidence", and a valid reason for dismissal.

That did not save the employer. Because it had not known about the recordings, Ms Chandler was never told of that reason or given a chance to respond. Refusing to delay the meeting so she could find another support person was, in effect, an unreasonable refusal of a support person. The Commissioner called the process "bungled and incompetent". The dismissal was unreasonable for those reasons, and harsh given its effect on her: she had committed to buying a house and land package and was struggling to find work during COVID-19.

The appeals and the compensation

Reinstatement is the primary remedy for unfair dismissal, but the Commission refused it here. There was little or no work at the store, and trust and confidence had been lost because of the secret recordings. A Full Bench refused Ms Chandler permission to appeal in December 2020.

In March 2021 the Commissioner awarded $4,495.64 plus 9.5% superannuation. That was two months' pay, because he found the employment would not have lasted longer than that. He made no deduction for misconduct, because the employer had not known about the recordings when it decided to dismiss her. A second Full Bench refused permission to appeal in May 2021.

What this means for you

If you are worried about a meeting with your employer, it is usually better to ask whether you can record it, or to bring a support person and take notes, than to record it secretly. A secret recording can help prove what was said and still hurt your claim. In Western Australia there is a further risk: the Surveillance Devices Act 1998 (WA) can make it an offence to record a private conversation without consent, even one you are part of, except in limited cases.

For employers, a fair process still matters even when a valid reason later emerges. If you have been dismissed, the time limit for a Fair Work unfair dismissal claim is 21 days, so get advice early.