14 WAIKATO BUSINESS NEWS <strong>November</strong>/<strong>December</strong> <strong>2016</strong> Covert recordings in the workplace A preliminary decision in an employment matter, specifically whether a covert recording was admissible as evidence before the Employment Relations Authority is raising eyebrows in the employment law world. In the September <strong>2016</strong> case of Firman v Insyn Limited T/A Synergy Hair Riccarton, the employee, Ms Firman, made three covert recordings in her workplace and wanted to file the recordings, and subsequent transcripts of the recordings, as evidence that, among other claims, employees were bullying and gossiping about her. 30430 The general rule of thumb regarding the covert recording of conversations in employment law is that, as long as one of the participants in the conversation (generally the recorder) knows that the conversation is being recorded, and the conversation has not been specifically designed by the employee or employer to entrap someone to www.braemarhospital.co.nz 24 Ohaupo Road, Hamilton Phone: 07 843 1899 All health insurers accepted Because Braemar is owned by a charitable trust, we reinvest any surplus back into the hospital to stay at the forefront of surgical innovation. Excellence means Braemar say something out of context, then the recording is not illegal, and may be admissible as evidence. One of the recordings was a conversation between Ms Firman and her employer, involving the handing over of a disciplinary letter and her suspension. That was held to be admissible, which is not so unusual in cases before the authority. Another recording was a conversation between the employer and another employee, and Ms Firman claimed that this conversation had been inadvertently recorded. That was held to be inadmissible, which is also not unusual in these cases. The remaining recording, however, is far more controversial in that Ms Firman intentionally left her phone on record, unbeknown to the other employees, and then left the room in order to record evidence of what other employees were saying about her when she was not there. Despite this being both a potential breach of the Privacy Act 1993 and the Crimes Act 1961, the authority member held the recording (and its transcript) was “…admissible in the context of a claim before the authority about how the applicant was treated in the workplace.” Admissibility of the latter recording is highly unusual, although it does not make it, as some have erroneously termed it, a “landmark case.” For a case to be termed as such, it needs to have a significant and potentially lasting impact on the law and subsequent cases. The authority is the lowest jurisdictional institution in employment law, outranked by the Employment Court, the Court of Appeal and the Supreme Court (in ascending order of jurisdictional clout). Decisions in the authority are EMPLOYMENT LAW > BY ERIN BURKE Employment lawyer and director at Practica Legal Email: erin@practicalegal.co.nz phone: 027 459 3375 not binding on any of the courts above it, nor even on other authority decisions at the same level, although an authority decision may be “persuasive” on other cases before the authority for the purposes of attempting to maintain consistency. What’s more, it is unknown at this early stage, whether this decision in the authority will be appealed in the Employment Court. Authority decisions frequently are appealed and overturned, so any “impact” this case has on the law, may well be short-lived. A major consideration that both employees and employers need to consider when engaging in covert recordings that they are not party to is this; just because something is admissible as evidence, does not imply it is legal. If a defendant in a murder trial files evidence in their defence that at the time of the murder they were somewhere else committing a robbery, the evidence would be admissible but it would not make the robbery legal. Pursuant to section 216B of the Crimes Act, it is a criminal offence, punishable by up to two years in prison, to “… intentionally intercept any private communication by means of an interception device” where the person recording is not party to the conversation. “Intercept” is defined in the Act as including “…to hear, listen to, or record…” and “interception device” is defined as any electronic device capable of carrying out the interception. So yes, recording a conversation you are not party to on a mobile phone could definitely come within that definition. Take-home tips for employers from this controversial decision would be to ensure they have policies in place, which, among other things, specifically informs employees that covertly recording conversations they are not party to is a criminal offence, will be treated as serious misconduct and may result in summary dismissal and potentially even, criminal proceedings. The parties in an employment relationship are also constrained by good faith obligations, and any advantage a party might gain by engaging in covert recordings, may win the battle but not the war, if a covert recording is found to have breached good faith obligations or held to be a criminal offence. Hamilton insurance broker Frank wins award Hamilton-based company Frank Risk Management has won the prize for New Zealand Small to Medium Broking Company of the Year at the Australia and New Zealand Institute of Insurance and Finance Awards. Frank’s unique business model and innovative thinking were singled out by the judges, who also commented that “Founded in 2008, with no clients and a vision to disrupt the traditional approach to insurance Frank Risk Management has since expanded to more than 2000 clients serviced by 13 highly skilled staff...” The judges also acknowledged the company’s “...complete transparency with clients of all sizes and the innovative manner in which it demonstrates value to those clients.”. Frank Risk Management was started by Andrew Newman and Rene Swindley, who initially ran the business out of a small garage. They both left the comfort of good paying jobs at a corporate broker, and set about disrupting the market. It’s ‘fee for service’ approach to insurance broking and risk management immediately put it off side with the established corporate multi-nationals that dominate the provision of SME insurance in New Zealand. The company name, Frank Risk Management, reflects the way they operate on a full disclosure basis without hidden commissions and their belief that business owners have the right to know what they are paying for. Frank Risk Management encourages all insurance buyers to ‘ask their broker for a complete breakdown of costs’. Good brokers should have no problem with this and the buyer can then decide if the remuneration equates to good value for the services given. Mr Swindley said that the award was an affirmation of the Frank Risk Management philosophy of bespoke insurance placement and claims service, risk management support and disaster recovery planning that is built into their overall service. SPA2036 WE’RE LOCAL LIKE YOU We know what business is like where you live, because we live there too. We’ll come to you, giving you a dedicated business communications expert and regular tech checks to ensure you have the right solutions. 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