The Fair Work Commission has refused to allow a worker to put recordings of two meetings she had with her managers into evidence to prove that she was dismissed and did not resign, ruling that they were most likely obtained improperly or in contravention of the law.

Commissioner Nick Wilson did not listen to the recordings, but asked the self-represented worker to provide written submissions on how they might assist her to prove that statements made by her former employer's witnesses were false.

Her former employer, Fazche Pty Ltd t/a Integrity New Homes, intends to argue in the hearing of the unfair dismissal claim that the FWC does not have jurisdiction to deal with it because the worker resigned.

The recordings were made without the knowledge of the managers who attended the meetings.

Commissioner Wilson said that while s591 of the Fair Work Act made it clear that the tribunal was not bound by the rules of evidence, this did not mean it should not have regard to them in making its decisions.

He therefore considered the discretion to exclude improperly or illegally obtained evidence under s138 of the Evidence Act, and concluded that the recordings were "potentially" made in contravention of the SA Listening and Surveillance Devices Act.

"In the absence of any evidence to the contrary, it follows the recordings were most likely obtained improperly or in contravention [of] an Australian law," the commissioner said.

Despite his view that the recordings potentially assisted the worker's argument that she was dismissed and that her employer's witnesses were being untruthful, he said was not persuaded to allow them into evidence.

Commissioner Wilson said the worker would be able to put her contentions to the employer's witnesses in cross-examination.

In a separate matter, the Federal Circuit Court agreed last month to admit a mobile phone recording of a meeting into evidence in a general protections claim, finding that it would assist in determining whether undue pressure had been applied to convince a worker to accept deductions in pay (see Related Article).

But in that case both parties consented to the recording being admitted, it was apparently made inadvertently and the judge said it did not appear to contravene the WA Surveillance Devices Act in any event.

Haslam v Fazche Pty Ltd T/A Integrity New Homes [2013] FWC 5593 (12 August 2013)