Recording your boss can backfire and get you fairly dismissed if you don’t have a justifiable reason to do so. This is the lesson we can draw from two recent unfair dismissal cases where the Fair Work Commission punished the employees for making secret recordings.
The legality of secretly recording your boss or colleague at work depends on the laws in your state or territory (which you can read more about in our article). But even if it’s legal, it can still be seen by the Commission as misconduct. And if you provide a secret recording as evidence in your unfair dismissal claim, the Commission may reject it due to its underhanded nature.
Read on to learn about these two cases and how the Commission regarded the secret recordings. While the employee in one case won unfair dismissal, he had his compensation reduced by 20% because he made secret recordings at work.
Teen worker’s secret recordings rejected by Fair Work Commission
The following events were detailed in the unfair dismissal case Harry Holt v TEEG Australia Pty Ltd [2025]. Sixteen-year-old Harry Holt began working as a casual guest services and party host at TEEG Australia, trading as Zone Bowling Penrith, in Western Sydney in March 2024. He had been fired by the company in November 2024 for “taking things without permission” and using the game machines too often.
When he made his unfair dismissal claim, Mr. Holt told the Fair Work Commission that he had secretly recorded three meetings with TEEG Australia. One of these was recorded prior to his sacking, one on the day of and another in February 2025. Mr. Holt had transcribed these meetings and submitted it as evidence in his claim.
Argued autism justified secret recordings
TEEG Australia objected to Mr. Holt’s unfair dismissal claim on two grounds. Firstly, because it was submitted to the Fair Work Commission 113 days after the 21-day statutory limit. Secondly, because it argued that his secret recordings were illegal under the Surveillance Devices Act 2007 (NSW).
Mr. Holt also argued that the secret recordings were “reasonably necessary” to protect his lawful interests. He attributed this necessity partly to his autism spectrum disorder, which caused him to be worried that the termination could affect his family’s defence-sponsored visa status.
Argued employer discriminated against him due to autism
Mr. Holt acknowledged that he was told of his sacking on 22 November 2024 but submitted that TEEG Australia didn’t actually terminate his employment until 10 March 2025. If this later date were accepted, the application would have only been five days late. Mr. Holt’s primary reason for the delay was his focus on resolving the dispute internally with TEEG Australia, both directly and through his mother.
Following his sacking, his mother told TEEG Australia that she was “seeking to take this matter further” by lodging an unfair dismissal claim. Mr. Holt also blamed his late application on his autism spectrum disorder and the anxiety and distress caused by his sacking. He also cited his arm injury and lack of awareness of the Fair Work Commission’s 21-day deadline as reasons for the delay. He said the dismissal process was “flawed and discriminatory” due to his autism spectrum disorder, arguing the response was disproportionate to the alleged conduct.
Fair Work Commission ruled secret recordings not justified
The Fair Work Commission was not satisfied that Mr. Holt’s secret recordings were reasonably necessary to protect his lawful interests, even when considering his autism spectrum disorder. It therefore didn’t allow the recordings or transcripts to be admitted as evidence. The Commission said that Mr. Holt could have kept a record through other means, such as taking notes or seeking assistance from a support person, such as his mother, who was present for the final recorded meeting.
The Commission also found it unpersuasive that Mr. Holt’s purpose for making the recordings was only for private use. It noted that by the time of the final recording on 7 February 2025, the possibility of legal proceedings was “in contemplation.”
Autism no excuse for late application
The Fair Work Commission determined that Mr. Holt was fired on 22 November 2024 when the dismissal was “clearly” communicated to him in person. Mr. Holt had highlighted that TEEG Australia made comments in February 2025 regarding the termination not being made “official.” However, the Commission found these comments were made in the context of discussing a potential return to work as part of a negotiated settlement, not a revocation of the dismissal. Consequently, it ruled that the application was 113 days late.
The Commission found that while Mr. Holt’s case had some exceptional circumstances, these did not adequately explain the entire delay. It accepted that the sacking was “likely” to cause significant distress for a young person with autism spectrum disorder. However, this only explained “part, but not all, of the delay.”
Could have lodged unfair dismissal claim on time
The primary reason for the delay, Mr. Holt’s attempt to resolve the matter internally, was found to be a reasonable decision. However, it was accepted that this placed the option of an unfair dismissal application at risk due to the time consumed. The Commission noted that Mr. Holt and his mother were aware of the option of unfair dismissal from as early as 27 November 2024. It said that they could have pursued direct negotiations “in parallel” with filing the application.
Ultimately, the Commission was not satisfied that it should allow additional time for the application to be made. The Commissioner found that the delay was not adequately explained. The Commission concluded that “the legislative intent” is generally for unfair dismissal applications to be made “quickly.” Neither the merits of Mr. Holt’s case nor fairness compared to others in a similar position was enough to “tip the balance in favour of additional time.” Mr. Holt’s unfair dismissal claim was therefore rejected.
Truckie wins $30K after secret recording reveals safety issues
Another recent unfair dismissal case that involved secret recordings is Martin Stoddard v Crushing Services International Pty Ltd [2025]. Brisbane-based Martin Stoddard began working for Silverstone as a truck driver in 2023. The company was transferred to Crushing Services International in March 2024. Mr. Stoddard typically worked 4 weeks at a time, referred to as “swings.”
The events that led to his termination occurred in two phases: the creation of a secret recording on 13 May 2024 and the use of the recording on 20 August 2024. This recording was made as Mr. Stoddard wanted to document safety issues at his worksite, which he attributed to a back injury and which he felt were being ignored.
On 13 May 2024, two days after injuring his back due to a faulty truck seat, Mr. Stoddard used his Apple Watch to secretly record conversations with his supervisor and a colleague. This included while he was assisting with a re-torque on a vehicle. He told the Fair Work Commission that he decided to make the recording as he “did not trust the Supervisory staff.”
He later took time off due to his injury and returned to work on 17 July 2024. Mr. Stoddard told the Fair Work Commission that he was unhappy his employer had not set up a return to work program for him. Also, because he had to drive another truck with a faulty seat.
‘I don’t care if you listen!’ Emailed secret recording to managers
After returning home from a work swing, on 15 August 2024 Mr. Stoddard exchanged texts with Crushing Services International’s injury management advisor. He subsequently emailed his recording to the advisor and a haulage manager. In the email he said, “I don’t care if you listen! And I recorded it for my own protection.” He asserted that he wanted people “to accept there [sic] faults!!” Mr. Stoddard said that he had hurt himself due to “neglect by management. He further stated that the “crazy thing is everyone like yourself are ignoring it.”
When Mr. Stoddard returned to his work site on 28 August 2024, he noticed people breaching critical safety issues. He emailed the advisor and haulage manager asking if someone could address these issues. Two days later, Mr. Stoddard was stood down pending an investigation. Crushing Services International made allegations against him based on the secret recording he had emailed previously. This included using his mobile phone in operational areas. Also, having a phone while operating a vehicle, and improperly performing a re-torque.
Attempted to secretly record meeting about allegations
On 31 August 2024, Mr. Stoddard emailed Crushing Services International’s general manager to request the mobile phone and re-torque procedures that were in effect on 13 May 2024. The general manager responded by sending him a policy specifically written for the company’s Pilbara, Western Australia worksite. Mr. Stoddard questioned this policy, only to be told it was the “Same policy as here mate.”
A meeting to discuss the allegations was held on 2 September 2024 with the haulage manager and general manager. Mr. Stoddard attempted to record the meeting on his phone but ceased when asked to do so by the haulage manager. He told the meeting that he only used his phone in the haulage administration office to show a supervisor photos of a seat in a truck that had caused him a back injury.
Regarding the re-torque, he explained that a fitter was present to do the task and he had only assisted. After the meeting, Mr. Stoddard sought medical help for his back pain, citing “acute stress reaction” from the situation, and was sent home the next day.
Dismissed for secret recordings
On 5 September 2024, Mr. Stoddard received a show cause letter, which confirmed that the allegations had been “substantiated” and invited him to justify why his employment should not be terminated. Mr. Stoddard submitted his written response addressing each allegation. He explained why he hadn’t breached policies and why his actions were justified by safety concerns. He also highlighted inconsistencies in the company’s policies and procedures and the factual error in the show cause letter regarding who was at the meeting.
However, despite this Mr. Stoddard was dismissed by Crushing Services International on 11 October 2024.
Argued secret recordings were needed to document safety issues
In his unfair dismissal application, Mr. Stoddard argued to the Fair Work Commission that the secret recording and his brief use of his mobile phone to take and show photos were motivated by genuine safety concerns. He sought to document the “appalling condition” of the truck seat that caused his injury and felt his current vehicle’s faults were being ignored by management. He claimed he was “fearful of the office” because he had witnessed how others were treated and felt he needed the recording “to protect himself.”
Meanwhile, Crushing Services International argued that the secret recording, combined with policy breaches, constituted a valid reason for dismissal. The company argued that the covert recording of work colleagues was plainly destructive of a relationship of trust and confidence.
The employer further contended that Mr. Stoddard’s use of a mobile device on 13 May 2024 was a clear breach of various policies, including the MR Transport Behavioural Expectations. This policy stated that mobile phones are not permitted in the MRT Workplace and should not be used during work hours at any time.
Fair Work: Secret recordings not a dismissable offence
At Mr. Stoddard’s unfair dismissal hearing, the Fair Work Commission acknowledged that secretly recording his work colleagues was a form of misconduct. However, it was not deemed misconduct sufficiently serious to warrant termination. This was particularly because Mr. Stoddard believed that he needed to protect himself due to a lack of trust in his supervisor. The Commission accepted that Mr. Stoddard held a “subjective opinion” that his safety concerns were not being acted on or taken seriously.
Other allegations dismissed by Fair Work
The Fair Work Commission found that Mr. Stoddard did not use his mobile phone while operating equipment and was motivated by a “genuine safety concern.” The fact that his supervisor “took no steps to raise any concern” about the phone use at the time indicated the dismissal was an “overreaction.” Furthermore, the investigation was flawed, as it incorrectly assumed the recording was made on his phone and referenced an irrelevant policy.
The Commission was not also satisfied that the re-torque allegation was substantiated. It noted that the task was performed with a qualified fitter. It said that there was no clear evidence that Mr. Stoddard violated any specific instruction regarding which end of the torque wrench to hold.
The Commission also highlighted serious procedural flaws. This included the initial error in the termination letter, which had to be amended two days later due to Mr. Stoddard pointing out that he was on a WorkCover certificate.
Unfair dismissal payout reduced due to secret recording
Citing the destructive effect of the secret recording on the employment relationship, the Commissioner determined that reinstatement was inappropriate. His final compensation was calculated based on an estimated loss of 16 weeks of earnings. A 20% discount was applied to the final figure due to Mr. Stoddard making a secret recording of work colleagues on his smart watch without their knowledge.
Crushing Services International Pty Ltd was ordered to pay Mr. Stoddard $30,722.50.
Read more: Meta Glasses at Work in 2026: 7 Brutal Truths a Toxic Workplace Won’t Tell You
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