Nowadays employees have the tendency to secretly record all internal labour matters and often employers are caught off-guard by these audio recordings submitted by accused employees as evidence during disciplinary hearings. Employers are often of the view that such evidence is inadmissible as it was either obtained unlawfully, no consent was given or they had no knowledge of the recording.
Recently, the Amabhungane Centre for Investigative Journalism disputed parts of the Regulation of Interception of Communication and Provision of Communication Related Information Act 70 of 2002 (RICA) in the Pretoria High Court. Judge Sutherland ruled that the sections allowing surveillance of a person’s communications were unconstitutional.
Nevertheless, this judgement should not be viewed as invalidating RICA in its entirety. RICA stipulates that;
- Recordings may be done where the intercepting party is a party to the communication (“single-party consent”), which can be where employer and employees physically talk to each other, conversations via email, or conversations via a telephone call, video call or conference call.
- Whereat at least one of the parties to the communication has provided prior written consent.
- Where the communication relates to or occurs in the course of the carrying on of the employers business.
The question then arises whether employers can institute disciplinary action against employees as secretly recording is legal in terms of RICA? One needs to balance employee’s right to secretly record with the inherent trust relationship between employer and employees. Can employers then argue that the conduct of secretly recording has led to the irrevocable breakdown of the trust relationship?
In the case of Geerdts v Multichoice Africa (Pty) Ltd [1998] 9 BLLR 895 (LAC) the dismissal of an employee for secretly recording a meeting whilst not present, was found to be substantively fair. The court found that the managerial right requires that senior employees and managers should be entitled to evaluate the work of their subordinates in the position of confidentiality. Invasion of this confidentially has to be viewed in a very severe light. Not only does it violate the trust, but it also destroys the relationship and it is challenging to foresee that the employer can continue with the working relationship after such misconduct occurred.
The decision in the Geerdts case indicates that it is most probable that if an employee were to secretly record a conversation to which he/she was not a party, this conduct would be recognised by a South African court to amount to misconduct, which has led to a sufficient breakdown in the trust relationship. This will permit the employer to seek summary dismissal during a disciplinary hearing as an appropriate sanction.
RICA envisages circumstances where employer and employees agree either by contract or policy that the employer may use and intercept communication whilst conducting business. In such instances, the employer may lawfully submit any audio recordings intercepted within the course and scope of employment since the employees’ written consent was received to do so.
Whilst parties to an employment relationship have a legal right to record conversations without consent, this is not advisable. Not only is such conduct impolite, but it could possibly harm the trust relationship that should exist between employer and employees.
To ensure that employee’s conduct of secret recordings of which they were not a party can be structured as misconduct, it is advisable for employers to implement a policy that requires that any recordings of internal labour matters, will only be allowed if prior consent by all parties is obtained.
ABOUT THE AUTHOR
Eleanor du Plessis obtained her LLB degree and Post Graduate Diploma in Labour Law (cum laude) from the University of the Free State. She is an admitted attorney of the High Court of South Africa and has 4 years and 10 months experience in the field of labour law.