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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42671
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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An alleged investigation by my employer, yielded a report that

Customer Question

An alleged investigation by my employer, yielded a report that claimed-------
“Mr xxxx used a recording device to record a conversation without the authorization or knowledge of the parties to the conversation. This is a breach of the Surveillances Devices Act 2007”----- this was repeated several times in the report.
In the recommendation to dismiss me they stated “Mr xxxx has contravened the Surveillance Devices Act 2007”-------- and my supervisors dislike of this, as the reason to dismiss me. I didn't know it was reported to the Police until they knocked on my door and told me the case had been investigated and closed with no charges.
It is clear that no laws were broken, my employers "investigators" had repeated a number of times I had broken the law, are their statements in the report defamatory?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Morning
My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.
Recording a conversation is not a dismissible offence unless they can show that it is misconduct.
If they have a policy that does not allow your actions then you have a problem.
You would think that they would talk to you and issue a warning in these circumstances.
It is a breach of the law.
Here is the sections that you have breached
http://www.austlii.edu.au/au/legis/nsw/consol_act/sda2007210/s7.html
http://www.austlii.edu.au/au/legis/nsw/consol_act/sda2007210/s12.html
It is not defamation unless the contents are false and they are telling third parties and your reputation is being impacted.
If they are true, or they are not being spread you have no action in defamation.
I hope this makes sense and is of assistance. If there is nothing further thank you for using my services.
If I have missed anything, or you have any further questions please let me know
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
Regards
Leon
Customer: replied 1 year ago.

The definition of a private conversation is in the act part 1 section 4.

"private conversation" means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:


(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else."

The recorded conversations were not private conversations, they were conducted in public lobbies and hallways a number of people were listening in and a number of people were participants. The sections you refer to are for private conversations. It is the reason the police gave for not charging me.

In regard to the defamation these documents were circulated to at least 6 people including senior management, and possibly their office staff it appears to be common knowledge around the premises.

Expert:  Leon replied 1 year ago.
Good Morning
It does not matter where they were conducted they are still private.
The fact they have others listening does not change that fact
You cannot record a conversation unless you have consent.
The person may not have wanted others to overhear and it is their intention not you as the recorder to decide.
I hope this makes sense?