CAN an employer use a recording of a conversation against you in a disciplinary hearing, even if they obtained the recording without your consent?

Scorpion Legal Protection talks about when and why it’s allowed and what the law says about this.

Scorpion Legal Protection’s advice

Enshrined in our Bill of Rights is the right to privacy (section 14 of the Constitution). This right extends to the workplace. But like all rights, it’s subject to justifiable limitations.

An employer is allowed to breach the privacy of an employee if they can prove that the employee gave his or her consent (as in an employment contract).

Or the employer is given consent from anyone who was part of the communication, or by a third party if they have the prior written consent of at least one of the parties to the communication.

An employer is also allowed to breach the privacy of an employee if the communication relates to, or occurs in the course of carrying out, the employer’s regular business (Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002).

Another way is if it was justified by necessity or in the interests of justice to do so.

Section 35 (5) of the Constitution says that evidence obtained in a manner that violates any right in the Bill of Rights must not be used if the admission of that evidence would make the trial unfair or will be detrimental to the administration of justice.

This means that if evidence (like audio recordings) is obtained in a manner that violates an employee’s right to privacy, it would not be admissible. But it means such evidence would be admissible if it’s in the interests of justice.

The Labour Court has made it clear that employers may use recorded conversations in disciplinary hearings and legal proceedings as evidence against an employee. An employer can 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.

However, 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.

Tips

  • Laptops, emails, cellphones and other items given to employees by their employers are often legally allowed to be monitored, so be careful of how you use these. Don’t do anything you wouldn’t want your employer to see.
  • Even if a recording is unlawfully obtained, it may still be used as evidence if it’s in the interests of justice.
  • You can record a meeting, conversation or even a disciplinary hearing legally, even without the consent of the other people, as it is regarded as participant monitoring and would be allowed as evidence.

If you have a query, follow us on our Facebook page and ask your question during our next live Q&A (every first Thursday of the month).

Disclaimer: This is only basic advice and cannot be relied on solely. – ROY BREGMAN ATTORNEYS