Secret recordings of ‘sensitive’ discussions in the workplace

Secret recordings of ‘sensitive’ discussions in the workplace – an interesting bargaining council case!

It is very important to distinguish between whether these secret recordings are lawful and allowed, and if they are permissible.

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.

In the Bargaining Council proceedings of Waddell and Sandown Motor Holdings (Pty) Ltd (2021) 42 ILJ 2749 (MIBCO), 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. When the employee’s recordings came to light, the employee was charged with misconduct, subsequently found guilty of misconduct and dismissed. The employee then referred a dismissal dispute to the Motor Industry Bargaining Council (MIBCO).

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 the employee’s 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 company policy which prohibits unauthorised or secret recording:

• It dissuades employees from secretly 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 doctrine to stem its exposure from the point when the breach of company policy was uncovered

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 made these secret recordings will determine whether it can be considered misconduct, and what disciplinary steps can be taken.

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