The industrial tribunal has upheld the sacking of an operations manager who secretly recorded his managers in a bid to prove his bullying claim but then refused to hand the audio file to his employer.
In a decision canvassing the legality and appropriateness of covert workplace recordings and whether they are reason enough for dismissal, the Fair Work Commission cited Deputy President Peter Sams’ decision in Thomas v Newland Food Company.
In that case, Deputy President Sams said “the fact that an act is lawful in the wider community sense, does not mean that the same act in the workplace would not constitute a valid reason for an employee’s dismissal”.
In this case, Commissioner Chris Simpson rejected Kone Elevators Pty Ltd employee Tiberiu Mocanu’s assertion that because the recordings were not illegal, their covert nature and his refusal to hand them over was “not a form of misconduct”.
The company’s HR director for Australia and NZ said the bullying claims Mocanu had made against his managers were serious and, if proven, could result in two employees losing their jobs.
The company said it wanted the recordings to assist in the bullying investigation. Mocanu instead provided what he purported to be a transcript of the recordings.
Kone said it held “some suspicion as to the veracity of the extracts”.
The company sacked Mocanu for serious misconduct in August 2017 after he failed to obey what it said were “lawful instructions” to hand over the recordings. Mocanu was on unpaid leave due to health reasons at the time.
Duty to obey intact even though unpaid
Commissioner Simpson said Kone was within its rights to ask for the recordings as they were “key evidence” in an investigation of “great gravity” for those implicated in Mocanu’s allegations.
“This investigation could have resulted in the dismissal of two other Kone staff members and therefore, where there was conclusive proof, I concur it would have been unreasonable to not seek to obtain that proof,” he said.
Commissioner Simpson rejected Mocanu’s assertion that because he was signed off work for medical reasons when Kone had requested the recordings, he was not required to obey the employer’s instructions.
The Commissioner agreed with Kone’s position, where it “accurately likened their directions [to him] … to provide the covert recordings while he was unpaid to asking an employee on leave to email back some passcodes or return some keys”.
The Commissioner noted Mocanu had sent several emails to Kone demanding it proceed with the bullying investigation with the transcripts alone, and that he would only hand over the recordings under certain conditions at a later date.
Effectively an attempt to “entrap” managers
Commissioner Simpson threw out Mocanu’s case, finding it was reasonable for Kone to press for the covert recordings, and his non-compliance with those requests constituted serious misconduct.
“The employment of two other employees was potentially put at risk … and it was inappropriate for Mr Mocanu to use intimidating language in correspondence to attempt to pressure Kone’s HR team in to facilitating his demands to proceed without the recordings,” Commissioner Simpson said.
It was “effectively an attempt to entrap the two employees he had raised allegations against”, the Commissioner said.
(Tiberiu Mocanu v Kone Elevators Pty Ltd, FWC 1335, 6/03/2018)