Recording of conversation accepted as evidence

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Recording of conversation accepted as evidence

The Fair Work Commission has ruled that a plumber who secretly recorded a verbal and physical fight with a colleague was fairly dismissed. The recording was found to be self-incriminating.

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The Fair Work Commission has deemed the termination of a plumber who secretly recorded a verbal and physical fight with a colleague as fair, after the recording was found to be self-incriminating.

The incident occurred in May when the Adelaide plumber could not remember the location of a job site or whether there were materials at the site.

He called his colleague who was already at the site where the job was to enquire as to whether there were any materials there.

His colleague wasn’t sure where the materials were so the plumber decided to drive to a supplier before heading to the site.

Shortly after, the colleague rang the plumber again and told him he had found the materials and had checked the notes of the job, which showed the plumber had worked at that site previously.

A heated argument over the phone ensued in which the colleague called the plumber a ‘dickhead’.

The plumber arrived at the site 15 minutes late and, having been criticised on the phone, decided to secretly record the next conversation with his colleague.  

What followed was a verbal and physical altercation in which both parties used several expletives and a hammer was thrown.

The colleague waved the hammer in the plumber’s face and pushed him.

The plumber wrangled the hammer from his colleague’s hand and threw it away. In doing so it connected with his colleague’s face.

Both men then yelled at each other some more before leaving the site.

Following an investigation from their employer, both employees were dismissed for gross misconduct.

The plumber was warned he may open himself up to criminal liability if he submitted the recording as evidence. Under the Listening and Surveillance Devices Act 1972 (SA), it is unlawful to record without the knowledge of other parties.

Despite the warning, the plumber submitted the recording and Deputy President Anderson accepted it as evidence.

However, the recording worked against the plumber because it revealed he did not walk away from the confrontation.

Willing participant


“(The plumber) was not hesitant about participating in the altercation. While he did not go looking to make trouble, he was prepared for it, anticipated it and was a willing participant to it,” he said.

“Before walking down the driveway, he knew he would record a likely verbal altercation involving himself and he wanted to get a record of it to implicate (his colleague).

“He had no intention of walking away from the argument even if it was to become heated. He was then willing, in the heat of the moment, to ramp it up by telling (his colleague) to ‘f@#%n pull your head in mate’.”

Deputy President Anderson said in reaching his decision, he considered Section 387(a) of the Fair Work Act (2009), which makes specific reference to the effect of conduct on “the safety and welfare of other employees”.

“I have concluded that the conduct of both protagonists compromised the welfare of each other and their right to work in a safe environment free of risk to health and wellbeing, and that it created a prospective risk to the health and safety of other employees with whom they may have subsequently worked alongside and had an altercation with,” he said.

The plumber’s application for unfair dismissal was dismissed.

Simounds v Aus Water & Gas Pty Ltd - [2017] FWC 5595 - 27 October 2017

This article was written by the Chamber of Commerce and Industry WA.



 
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