An Auckland restaurant boss has learned the hard way that the most dangerous person in a heated argument may be the one quietly holding a phone. The Employment Relations Authority has ruled that covert audio recordings of his abusive outbursts were admissible, found he created an unsafe and hostile environment, and awarded the workers who made the recordings a payout.
The headline reads like a one-off hospitality horror story. It isn’t. It is the latest step in a line of Authority decisions that has been tightening for years, and the message for business owners is blunt. If your workplace culture depends on nobody being able to prove what happened, you no longer have a workplace culture. You have a liability.
The tape was secret, the ruling is not
The Authority did not treat the covert nature of the recordings as a reason to bin them. It treated the content as what mattered. A boss who screams at staff can no longer count on the dispute collapsing into one person’s word against another’s. The recording settles it.
That shift matters most in sectors where tempers run hot and HR is a folder in the back office. Hospitality, retail, trades and small professional firms are exactly where owner-operators manage staff directly, under pressure, with no one checking their conduct.
A line the Authority has been drawing since 2016
Back in 2016, an ERA decision found secret recordings could be used against an employer, a ruling discussed on RNZ’s The Panel and flagged at the time in a warning to employers on Scoop. That decision went further than today’s law, admitting conversations the recording employee was not part of.
The Authority refined the test in 2024. In Downer v LM Architectural Builders, an employee recorded two conversations involving the company’s then-managing director. The Authority split them. A direct conversation between employee and boss was admissible. A recording of the boss talking to a third party was not, because she was not a party to it and it engaged privacy protections under section 216B of the Crimes Act. The Authority reached that position by weighing natural justice, good faith and equity, even though the Evidence Act does not strictly apply to its proceedings.
The working rule employers should take from this is simple. If you are in the conversation, assume it can be recorded and assume it can be used.
When the conduct is abusive, the method stops mattering
The 2025 Farrelly v Surrey Crescent BBQ case showed where the Authority’s attention really goes. It found the owner had engaged in a pattern of abusive behaviour between January and April 2024, including screaming, swearing, obscene slurs at staff and throwing items. The employee was found to have been unjustifiably constructively dismissed, with the Authority pointing to risks to her psychological wellbeing that the employer failed to manage despite knowing she had disclosed anxiety.
Read the Auckland restaurant ruling alongside Farrelly and the pattern is clear. Once the behaviour is genuinely hostile, the employer’s health and safety obligations become the case. How the evidence was gathered becomes a footnote.
Staff who overreach carry their own risk
This is not a licence for staff to bug the office, and employers should not read it as one. In 2025, Business Canterbury’s HR team noted the Authority had found an employer could reasonably summarily dismiss an employee for attempting to covertly record conversations they were not party to. The same analysis made a point managers will welcome, that an uncomfortable conversation about performance concerns does not constitute bullying.
A 2025 HRD analysis went further, arguing that secretly recording conversations an employee is not involved in can amount to serious misconduct because the duty of good faith requires both parties “to deal with each other fairly and reasonably” and not to do anything likely to mislead or deceive. Recording other people’s private conversations can also cross into criminal territory under section 216B.
So the law is not tilted against employers. It is tilted against bad conduct, from either side.
What owners should do on Monday morning
Lawyers have been warning for some time that smartphone ubiquity has made covert recording of employment meetings close to routine. Employers should act accordingly.
Run every disciplinary, performance or difficult conversation as if it is being recorded, because it might be. Say nothing you would not want read aloud to an Authority member. Put a clear workplace policy on recording in place, so staff know that taping colleagues’ private conversations is a disciplinary matter. And deal with managers, including owners, who lose their temper. The Authority’s workload is already rising, and nobody wants to add to it with a tape of their own voice.
The Auckland ruling will not be the last. Every staff member now walks in with a recording device, and the Authority has shown it will listen. The cheapest defence an employer has is not a better lawyer. It is not shouting in the first place.
Sources
- Stuff: Workers who covertly recorded boss’s abusive outbursts awarded payout after legal battle (2026-11-10)
- RNZ: Secret recording used in winning employment case (2016-10-07)
- Scoop: FYI – Employers beware of secret recordings (2016-10-07)
- Employment Relations Authority: [2024] NZERA 204 Downer v LM Architectural Builders Ltd (2024-04-08)
- Employment Relations Authority: [2025] NZERA 336 Farrelly v Surrey Crescent BBQ Limited (2025-06-17)
- Business Canterbury: Major employment case law development – recording conversations at work (2025-06-26)
- HRD: Secret recordings in the workplace a breach of good faith (2025-08-21)
- Wynn Williams: Caught on camera – the rise of recorded work conversations
- Employment Relations Authority: Annual Report 2024 (2024)
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