Fiction becomes reality: The admissibility of recorded telephonic discussions
Employers frequently have questions that in effect are answered by if the evidence, in the particular case, is admissible. Davids v Special Investigation Unit 2011 12 BALR 1275 CCMA is one such case that deals with the admissibility of recorded evidence.
What are the facts of the case?
- At arbitration, the employer relied on recordings of telephone conversations that the employee had had with another employee.
- The employee argued that the recordings were obtained illegally.
- He also argued that his right to privacy was invaded and felt the recording should be inadmissible. The employee contended that the recordings were not made within the course and scope of his employment. The employee placed specific reliance on the Interception of Communications and Provision of Electronic Communication Act:
Δ Section 2 of this act states:
“Subject to this Act, no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept, at any place in the Republic, any communication in the course of its occurrence or transmission.”
Δ Intercept is defined in section 1 of the act: “intercept” means the aural or other acquisition of the contents of any communication through the use of any means, including an interception device so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication, and includes the–
- monitoring of any such communication by means of a monitoring device;
- viewing, examination or inspection of the contents of any indirect communication; and
- diversion of any indirect communication from its intended destination to any other destination, and “interception” has a corresponding meaning;
- The employer maintained that the information was secured through the lawful tapping of someone else’s cellphone thereby recording the conversation with the employee. The employer also argued that the same legal technicalities do not apply in the CCMA as they might in a court of law.
- The employer said that the commissioner should exercise his discretion in allowing the submission of the evidence.
What did the commissioner find?
The commissioner found that while it does have authority to hear evidence that may have been unlawfully obtained, the party who wishes to rely on the evidence must first have a factual basis of why he wants to do so. Equity considerations are not regarded as being sufficient. The commissioner pointed out that further consideration need also be given to:
- Possible prejudice to the accused; and
- Interests of justice and public policy
While commissioners may handle matters with the minimum amount of formality it does not entitle them to act with impunity. Further handling matters with a minimum of formality relates rather to procedure not law of evidence.
The evidence was found to be inadmissible.
What this means for you?
This means that as an employer you need to know what evidence is admissible and what is not, even before you arrive at the disciplinary enquiry.
All too often, employers get this wrong and end up losing their cases.
What’s more this they end up paying ex-employees huge amounts of money or they have to reinstate those employees.
As an employer, you need to know where you stand and you need to be prepared.
Make your way to the Global Business Solutions: Disciplinary Enquiry workshop where you learn exactly what evidence is admissible and what is not.
HR Pulse will be bringing you live coverage of this event. So make sure you book your seat.
