Secret recordings of discussions in the workplace

Employers face many challenges in the workplace.  One that puts the employer in a vulnerable position, is when an employee wants to submit secret recordings of meetings or discussions into evidence in an unfair dismissal dispute at the Commission for Conciliation, Mediation and Arbitration (CCMA).  It is very important to distinguish between whether these secret recordings are lawful and allowed, and if they are permissible.

RICA and secret recordings

Section 4 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 70 of 2002, as amended (RICA), allows the recording or ‘interception’ of a conversation where the person who is recording the conversation, is part of that conversation. However, the law prohibits the secret recordings of conversations where the recorder is eavesdropping.

Although it may be lawful to secretly record a conversation, the true test is whether the act of recording a private conversation in secret, without informing the employer that it is being done, is a form of misconduct, even if this is legal under RICA.

This creates tension between the right of any person to record a conversation to which he is part of and the well-accepted principle of mutual trust between an employee and employer.   

The employment relationship is built on trust

Since the employment relationship is built on trust, secretly recording the employer without informing the employer thereof or asking for consent, even if this is legal in terms of RICA, will ultimately have a negative impact on the trust relationship. If there is a policy or disciplinary code that prohibits secret recordings in the workplace, then the making of such recordings will most likely impair the trust relationship. The circumstances under which the employee has made these secret recordings will determine whether it constitutes misconduct.

Case study – example of secret recordings

In recent Bargaining Council proceedings, the arbitrator had to decide whether a dismissal was fair where an employee secretly recorded negotiations between her and her employer. During these negotiations sensitive commercial information was exchanged during these conversations, which would not have been imparted by the employer’s managers had they known that their conversations were being recorded.

In the arbitration proceedings before a MIBCO arbitrator, the employee contended that RICA was applicable and that the recording was lawful. The arbitrator agreed that the recording was lawful, but found that, given the content and nature of the negotiations between the parties, the employee’s conduct had been manipulative and was in breach of her duty of good faith. The arbitrator therefore found that her conduct constituted serious misconduct, justifying dismissal.

It is therefore always important for an employee to consider what the consequences of their actions could be. By making secret recordings in the workplace might just lead to a dismissal.       

Benefits of a no-recording policy:

  • It dissuades employees from recording conversations
  • It encourages trust and candid conversation
  • If knowledge of the recording occurs only after litigation has commenced, the employer may be able to use the after-acquired evidence to stem its exposure from the point when the breach of company policy was uncovered

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LWO Regsadviseur - LWO Legal Advisor

LWO Regsadviseur - LWO Legal Advisor

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