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Recordings: May an employee secretly record their employer?

We live in an era of technology, live-stream videos and photoshop.  Rarely does something happen that cannot be captured on video or recording.  Therefore, it stands to reason that employees would also record their employers.  Often an employer can be caught making unwanted remarks, which may place them in hot water at a later stage.  This begs the question if it is legal to record your employer without their explicit permission.  A further extension of the question is if such covert recording can be considered as a form of misconduct committed by the employee against their employer.    

It seems that a recent High Court ruling by Judge Sutherland would render the covert recording of your employer as unconstitutional.  However, recordings may occur under certain conditions.  This ruling was made when the Amabhungane Centre for Investigative Journalism challenged portions of the RICA (Regulation of Interception of Communication and Provision of Communication Related Information Act) in the Pretoria High Court. Judge Sutherland found that those sections of RICA that allowed surveillance of a person’s communications were unconstitutional. This finding has been hailed as a victory for greater freedom from unlawful surveillance. However, it is important to note that, where it comes to communications between individuals, especially where there is an employment relationship, RICA has an interesting intersection with labour laws.  

When one considers the action of an employee secretly recording their employer, one must consider both the right of any person to record a conversation (provided that such person is a party to the conversation), and the principle that an employment relationship is based on trust.  Therefore, an assertion might be made that where an employee records an employer without their knowledge or consent, the conduct may lead to a breakdown in the trust relationship.  On the one hand, RICA provides for single party consent to monitoring or recording of direct communications.  In other words, an employee may legally record any communication with their employer, as long as the employee is party to the conversation.  For clarity, a person is ‘party to the conversation’ either via direct conversation or indirectly via electronic communication such as phones, e-Mails, video calls, etc.  Note that it seems the only restriction to this rule is that the person recording the communication cannot be a law enforcement office and cannot record the communication with the intention of committing an offence. 

However, despite the fact that such a covert recording might be legal, it does not necessarily mean that it cannot damage or destroy the trust relationship.  Similarly, to other acts of misconduct, the act does not necessarily have to be illegal for it to be considered misconduct or even to destroy the trust relationship.  Therefore, on the presumption that the employer/employee relationship is built on trust, secretly recording your employer without informing them or asking for consent, even if this is legal in terms of RICA, may negatively affect the ongoing employment relationship.

An example of where an employee secretly recorded an employer (where the employee was NOT party to the conversation) and had been subsequently dismissed as a result, can be seen in the case of Geerdts v Multichoice Africa (Pty) Ltd [1998] 9 BLLR 895 (LAC) (Geerdts).   The Labour Appeal Court found the dismissal to be substantively fair.  The court found the following:

“The managerial prerogative requires that senior employees and managers should be entitled to evaluate the work of their subordinates in circumstances of confidentiality. Any invasion of this privileged occasion has to be viewed in a very serious light. Not only does it reveal a breach of the trust that the manager will objectively evaluate such work, it also destroys the relationship as such. Clandestine electronic surveillance undermines good faith and fidelity and betrays a less than honest disposition. It is difficult to see how the employer can be fairly expected to continue the employment relationship having regard to such misconduct”.

The decision in Geerdts indicates that it is most likely that if an employee were to secretly record a meeting to which he was not a party, this conduct would be recognised by a South African court to constitute misconduct, which has led to a sufficient breakdown of the trust relationship to warrant the employer to seek dismissal as an appropriate sanction.  However, it does not give further insight if the employee secretly records a meeting when they are a party to the conversation. Therefore, in order to ensure that the employee’s conduct can properly be framed as misconduct, it would be useful for the employer to have a policy requiring any recordings of workplace meetings or discussions to be allowed only if consent by all parties is obtained.  

In the absence of such clear rules, an employer would be hard pressed to take actions against an employee that records a conversation without consent.