There are many employers who have installed security cameras in the workplace. These cameras record employees going about their daily duties as well as patrons and customers visiting the business premises.


Should an incident occur, perhaps theft or assault, whether by an employee or customer, it is easy to revert to this footage and get to the bottom of the incident.


It has occurred in many CCMA or Bargaining council disputes where such footage has been presented as evidence against an employee. In many instances, this footage will be of sufficient quality to identify the persons therein. This is, however, not always the case.


With current technology advancements, many employees now have access to smartphones that produce high-quality video recordings. It has become extremely easy for employees in the workplace to record conversations or meetings with their employer or colleagues without their knowledge or without prior consent being given.


Section 4 of the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA) provides that it is not illegal to secretly record a conversation you are party to. It, however, becomes illegal to do so to commit an offence, for example, obtaining personal information like a bank account or other details.


The employees’ cell phone, for example, does not even need to be visible to the employer while a recording is being made. These recordings can then be introduced as evidence during a disciplinary hearing, at the CCMA or Bargaining Council or even in a Court.


The right to privacy in using these recordings is outweighed when the use of such recordings will be in the interest of justice. In order for a recording to be legally obtained, you must be a party to that conversation. A third party, for example, can not legally record a conversation between two employees while eavesdropping. This can only be done if one of the parties to the conversation has given their permission. Only one party may need to give consent leaving the other vulnerable to a “secret” recording.


In many instances at the CCMA, during a dispute, the employee has presented an audio recording that has left the employer quite stunned and also very embarrassed and has totally derailed the defence presented by the employer party. It is thus very important to always discipline employees and conduct yourself as if you were being recorded and who knows…you just might be.


Article by: Carlene van der Lith

Dispute Resolution Official – Kimberley