Photography / Steve Halama
Have you recently become aware of complaints of inappropriate behaviour or conduct in the workplace? Are you preparing to embark on a workplace investigation into the complaints?
Well-run interviews are critical to the vast majority of investigations, to determine what the complainant, respondent and witnesses saw and heard.
It is therefore unsurprising that we are often asked the question: should we audio-record interviews or instead make a written contemporaneous record of what is said?
It used to be the case that to audio-record, interviewers would need to rely on sometimes unreliable technology and employers would need to stomach the not insignificant costs of transcription. Both of these things made taking notes (usually to be drafted up into written statements) preferable in most circumstances.
However, in the iPhone age, the practice of obtaining consent for interviews to be audio-recorded and then transcribed is on the rise given the ease of access to apps and technology making the process easier, quicker and more cost-effective.
To tape or not to tape?
The following scenarios show that in many cases there are significant advantages to audio recording witness interviews.
“I didn’t say that!” One clear benefit of an audio-recorded interview is that each interview participant will have an accurate record of what is said. This can help to minimise disputes about statements made in the course of an investigation, particularly in relation to admissions or statements against a participant’s interests. In other words, it is more difficult to “reverse the record” when the parties have agreed to audio-record the interview up-front.
“Sorry, can you please slow down so I can write that down?” Audio-recording also allows the interviewer to be present in the moment, and not distracted by having to quickly take down legible notes at the same time as listening. While in some cases audio-recording can make interviewees nervous, we find that in most cases taping interviews will allow for a more conversational format by minimising the pauses associated with taking notes and asking questions at the same time.
“Can I say this off the record?” While this is not always the case, in many workplace contexts recording interviews can ensure all participants are aware of the seriousness of the issues being considered and their role in the process. This can help set the tone for interviews, although participants should always be made aware that nothing is “off the record”. In other words, that any discussions before the tape is turned on or after the recording is stopped will also be considered, as relevant, in the investigation.
“Oops, I didn’t make a note of that.” While it is true that audio-recording interviews instead of making contemporaneous notes (to form the basis for witness statements) generally results in longer transcripts for the investigator and participants to review, audio-recordings also allow for the benefit of afterthought. For example, it is not uncommon for something an interviewee said to not seem important at the time, but subsequently come to the forefront after other interviews. In this situation, it is critical to be able to rely on the transcript and identify issues that may otherwise have been lost or forgotten (particularly in a complex investigation involving multiple allegations).
Despite these benefits to audio-recording, the question remains one that needs to be answered based on the facts and circumstances of each case (including the requirements of any workplace policy/industrial instrument, the complexity of the issues in the investigation, any applicable freedom of information legislation, the number of witnesses and whether the investigation is likely to result in litigation[1]).
Top tips for recording interviews
So, what steps do interviewers need to take if a decision is made for witness interviews to be audio-recorded?
Be prepared and obtain consent. As with anything, preparation is key. If the interviewer proposes to use audio-recording, prior written consent must be sought from the interviewee and an alternative plan should be made if the interviewee does not consent to recording. In our experience, interview participants feel more comfortable with recordings being made when they have been informed about the process up-front and are not caught off-guard on the day of an interview with the request for their consent.
Be clear about the information participants will be provided with. As a matter of procedural fairness, it is generally necessary for interview participants to be given the opportunity to review and consider transcripts of their own interviews (particularly the complainant/s and respondent/s).[2] However, it is generally not necessary from a fairness perspective to disclose transcripts of interviews of other witnesses.[3] All involved in the investigation should be informed of this from the outset, and told that information received in the investigation will be treated confidentially, except to the extent that procedural fairness or disciplinary processes require otherwise.
Test the technology in advance. Mid-way through an interview is not the time you want to receive a phone call on your smart phone or have your recording device run out of battery. You should make sure your recording device is fully charged and, where relevant, set to flight mode. Before your first interview, we recommend trialing a test run of the app or other software you are using to ensure all is in order. And most importantly, make sure you have a backup plan (pen and paper!) if all else fails.
Ensure equal treatment. One of the central elements to a well-run workplace investigation is unbiased treatment of the participants and procedural fairness. Where geographical and other constraints affect an investigator’s ability to interview all involved in person, consideration should be given to obtaining consent to record interviews conducted by Skype and telephone as well (where technology permits!).
Don’t be complacent. As noted above, audio-recording interviews has the benefit of allowing an investigator to fully focus on the interview itself rather than frantically taking notes. However, this does not mean an investigator can simply switch off! Particularly where there are conflicting accounts of events, credibility assessments will be key. Credibility is not only a matter of what is said, but also how evidence is given. Freeing up your mind from the burden of taking notes about everything that is said should allow an investigator to better consider the demeanor of each witnesses, how they respond to questions and any inconsistencies in their version of events. Be prepared to take notes on each of these matters, to consider further with more head space following an interview.
Not sure what to do or like some help?
Please give us a call on 02 8226 8535 or email hannah@theworkplacelawyers.com.au, kim@theworkplacelawyers.com.au or alina@theworkplacelawyers.com.au if you need assistance with managing investigations.
The copyright in this blog is owned by The Workplace – Employment Lawyers Pty Ltd. The content is general information only and is not intended to constitute, or be relied upon as, legal advice. The use of this blog by any person or company does not create any solicitor-client relationship between the person or company and The Workplace – Employment Lawyers Pty Ltd.
[1] Transcripts from recorded interviews, or the audio-recordings themselves, may form part of evidence in court or tribunal proceedings. See, for example, Clarke v Toll Transport Pty Ltd [2019] FWC 606.
[2] This may also be required under the terms of an enterprise agreement or workplace policy.
[3] See, for example, comments made in a freedom of information context in I6XD0H and Department of Community Safety (Unreported, Queensland Information Commissioner, 26 June 2012): “Although it is reasonable to expect staff to cooperate with investigation processes in the course of their employment, disclosing the transcripts of interviews of other witnesses when it is not required for the investigation and discipline process and after the matter has been finalised would also make staff reluctant to fully participate in future workplace investigations of this nature”.