It is becoming increasingly easy for employees in the workplace to record conversations, meetings and disciplinary enquiries without the consent of the employer to do so.

Samantha Bonato, an associate in ENSafrica’s employment department, said that the advancement of cell phone technology makes it easy for employees to make recordings without anyone knowing, simply by placing their cell phone in their jacket or trouser pocket or on a table in a meeting.

“Employers then find themselves in a position where they are confronted with audio recordings of their conversations with employees without even knowing that such recording had been made,” she said.

“These recordings may be introduced by employees as evidence in disciplinary hearings, dispute resolution proceedings at the CCMA and even in court.

Is it Illegal?

Bonato said that it is not illegal for a person to record or intercept conversations that they are party to.

Section 4 of the RICA Act states that any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication – unless such communication is intercepted by such person for purposes of committing an offence, she said.

However, even unlawfully-obtained conversations may be used against you, she warned.

“Section 35(5) of the Constitution of South Africa provides that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence renders the trial unfair or will otherwise be detrimental to the administration of justice.”

This would, of course, mean that if evidence (such as audio recordings) is obtained in a manner that violates an employee’s right to privacy, it would not be admissible, Bonato said.

“However, section 35(5) of the Constitution qualifies this to essentially provide that such evidence would be admissible if it is in the interests of justice to do so.”

This was the case in Protea Technology v Wainer, where the employee argued that the transcripts of telephone calls recorded by a surveillance device utilised by an employer were inadmissible, she said.

The court held that in respect of telephonic conversations pertaining to the employer’s affairs and at the employer’s business, there was no legitimate expectation of privacy and the employer was entitled to utilise recordings of such conversations.

“With regard to RICA, the court highlighted that the Act does not render evidence inadmissible when it is obtained in contravention of its provisions,” she said.

“Importantly, the court considered the fact that the employee was employed in a position of trust and that his right to privacy was therefore marginal in the circumstances.

“The telephone conversations which were recorded were also made from the employer’s business premises and within business hours. The employer was therefore entitled to require the employee to account for his activities during this time.”

Privacy rights

According to Bonato, this balancing of interests can reach quite far – especially in matters that do not involve a criminal factor.

This was confirmed in Harvey v Niland, where evidence was obtained by hacking into the respondent’s Facebook account.

In this case, the employee argued that the accessing of his Facebook communications was an infringement of his fundamental right to privacy and constituted a criminal offence.

However, the court held that privacy rights are not absolute, and in this case, were trumped by other factors, said Bonato.

“The relevant evidence was ruled admissible and the court confirmed the common law principle that all relevant evidence that is not rendered inadmissible by an exclusionary rule is admissible in a civil court, irrespective of how it was obtained,” she said.

“The court in this case also confirmed that South African courts retain a discretion to admit tape recordings into evidence notwithstanding the commission of an offence or the infringement of a constitutional right in obtaining the recording.”

It works both ways

It is clear that – regardless of how audio recordings are obtained – they may be admissible notwithstanding the infringement on constitutional rights and especially when in the interests of justice, Bonato said.

“Employers would be well advised to be wary of the fact that their employees may present evidence in various forums in the form of recorded conversations which the employer has no knowledge of.

“However, employers can also utilise the information obtained from recordings to their advantage,” she said.

“Given that the admissibility of audio recordings goes beyond the realm of employment law, and more into the interpretation of RICA and law of evidence spheres, the Labour Court has made it clear that employers may, in appropriate circumstances, utilise recorded conversations in disciplinary hearings and legal proceedings as evidence against an employee, taking into account the relevant facts of each case and the balancing of the respective interests involved.

“This is regardless of how such recordings are obtained, although it would be in an employer’s best interests to obtain such evidence legally,” she said.

She added that an employer can also present evidence in disciplinary hearings or arbitrations in the form of audio recordings (legally or illegally obtained), if doing so would be in the interests of justice and even if obtaining them infringes on an employee’s right to privacy.

“Employers are still required to follow a fair process and provide the employee with a fair opportunity to state his case and to respond to the evidence presented against him,” she said.

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