Can you Keep a Secret – Recordings at Work

A recent Employment Relations Authority (ERA) decision offers a timely reminder for employers about the importance of process and the limits of employee conduct.

In Downer v LM Architectural Builders Ltd [2025] NZERA 55, the Authority found that LMAB was justified in dismissing an employee for serious misconduct after she attempted to covertly record her employer without being present. While the dismissal was upheld, the case also highlights a misstep in the suspension process that cost the employer $7,000 in compensation.

The facts

Ms Downer was employed in an administrative role at LMAB. After a period of growing dissatisfaction and performance concerns, she told her employer she was looking for another job. Over the following days, she was found to have:

• Worked on her CV during work hours
• Deleted a large number of company files
• Left her work phone recording in an open-plan office after hours capturing private conversations without consent

LMAB suspended her the next day and later dismissed her for serious misconduct, relying solely on the secret recording incident.

What the Authority said

The ERA agreed that the attempted covert recording, made when Ms Downer was not present, was a serious breach of trust and good faith. In a small business environment, where confidentiality and trust are critical, the Authority found that dismissal was a fair and reasonable response.

However, LMAB stumbled when it came to the suspension. The employer failed to properly consult with Ms Downer before suspending her.  The Authority ruled this was an unjustified disadvantage and awarded $7,000 in compensation.

Key takeaways for employers

• Secret recordings are serious: Attempting to record conversations you are not part of especially in a workplace setting, can be serious misconduct. The ERA recognised this as a legitimate basis for dismissal.
• Process still matters: Even when the conduct is serious, employers must follow a fair process. That includes proper consultation before suspension.

This case reinforces that employers can and should act decisively when trust is broken. But even in the face of serious misconduct, the process must be sound. A misstep in procedure can still cost you.

Need help navigating tricky employment issues? Get in touch with us at Chapman Employment Relations – we are here to help you get it right.