“Hello? Is This Thing On?”
31 December 2019
Sara Lau discusses the use of surreptitious recordings in employment disputes.
A manager at a local telco company was recently said to be “suspended indefinitely”
following the ‘viral’ sharing, on various social media platforms, of a video of her scolding her subordinates at work. As a result of the ‘viral’ video, the business in question suffered reputational harm and had to perform damage control. After all, if a picture tells a thousand words, a video must tell a million.
While netizens focused on the conduct of the said manager, there was little interest as to who recorded the incident, which was clearly carried out covertly. Surreptitious recording of workplace exchanges is on the rise. A decade ago, one would need a stealth recording device to secretly record verbal exchanges – a wiretap hidden in a trouser pocket or a camera disguised as a shirt button. With the advent of technology, recordings can now easily be carried out without detection: just a finger tap or swift swipe on any mobile device. For this reason, coupled with social media-fuelled obsessions for sensation and scandal, it is important to acknowledge that covert recordings may make or break your day or case.
Recording conversations at work can be appealing. In a work-related dispute between colleagues, a covert recording of the dispute would conclusively determine a he-said-she-said deadlock. It can also serve to discredit character. Likewise, an employee claiming to have been bullied, defamed, discriminated against or mistreated by his employer can use a covert recording to prove his claim, simultaneously ravaging the reputation of the employer. Even employers can find covert recording a helpful weapon, especially in cases where an employee confesses to a misconduct that he later denies. Covert recording is powerful evidence indeed.
The million-dollar question is: should we be secretly recording conversations at work?
FIRED FROM WORK
The matter of secret recordings was recently the highlight of a case in Denmark. The matter started with a work-related dispute between a customer consultant (“Employee”) and a managing director over commission payments. As the conversation grew heated, the Employee threw a computer mouse in the direction of the managing director, but accounts differ as to whether the Employee threw the computer mouse at the managing director intentionally. The Employee then left work early, but not before some amends were made between him and the managing director. Later that day, the Employee received an email informing him that in consequence of his action of throwing the computer mouse at the managing director and leaving the workplace early, he was deemed to have resigned. Disagreements ensued, followed by a letter two weeks later from the employer’s lawyers notifying the Employee that his employment was terminated for cause as he had unlawfully left the workplace.
The Employee instituted unjust dismissal proceedings against his employer. In the first instance in the district court, the Employee produced an audio recording of the dispute he had had with the managing director, which neither the managing director nor the company had knowledge of. The company then issued a further termination letter to the Employee for having audio recorded the dispute, which it considered misconduct. The termination was to take place from the day the recording was made.
On appeal, the Danish High Court considered and decided that the Employee’s action of covertly recording the exchange with the managing director amounted to a material breach of the employment relationship to justify termination from employment. In its decision, the Danish High Court attached importance to the fact that the managing director was not informed beforehand that he was being recorded and that this constituted a material breach of the duty of loyalty in the employment relationship.
The Danish High Court’s decision was later overturned by the Danish Supreme Court. The Danish Supreme Court found that the audio recording did not breach local penal and data protection laws and accordingly, did not constitute a breach of the employment relationship in the circumstances of the case. Amongst others, the Supreme Court found that the audio recording served an objective purpose (rather than an unlawful one) and that the interest of the employer did not outweigh this purpose.
APPLICATION IN MALAYSIA
Like in much of the world, there are no statutory prohibitions against covert recordings of a workplace conversation in Malaysia. In fact, covert recordings can be and have been used in a claim for unjust dismissal.
The case of Sanjungan Sekata Sdn Bhd v Liew Tiam Seng
 3 ILR 1155 involved the dismissal of an Operations Manager. The Chief Executive Officer alleged that the Operations Manager induced another employee, namely the operations executive (“Operations Executive”) to resign from employment and join a different company. To fortify its claim, the company sought to admit tape recordings of the conversation between the Operations Manager and the Operations Executive. The Operations Manager was not aware that the Chief Executive Officer had instructed for tape recorders to be installed in the Operations Manager’s office and was thus not aware that his conversation with the Operations Executive was recorded. In deciding whether the surreptitious recording could be admitted as evidence, the Industrial Court held that it could, assuming the following guidelines, which were enumerated in Mohd Ali Jaafar v PP
 4 CLJ 208, were complied with:
- The tape was run through and found to be clean before the recording was made;
- The machine was in proper working order;
- The tape was not tampered with or altered in any way - it should be established in whose possession the tape was at all times;
- The officers (or other witnesses) played the tape over after making the recording and heard voices which they can identify;
- A transcript was prepared of the voices; and
- The officers (or other witnesses) played over the recording and checked it with the transcript as to the identity of the voices and as to the conversation.
In addition, the Industrial Court advised that the following precautionary steps ought to be followed:
- Uttering of the introductory and closing words;
- Breaking of the safety tabs after the recording; and
- Placing identification marks on the tapes.
None of the criteria above includes a consideration as to whether the recording was obtained without consent or knowledge.
The Industrial Court also ruled in Yap Fat v Southern Investment Bank Bhd / Southern Bank Berhad & Another  3 ILR 350 that the admissibility of illegally obtained evidence, as long as relevant, was consistent with section 30(5) of the Industrial Relations Act 1967 which requires the Industrial Court to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.
Taking into account today’s modern gadgets, the guidelines in Sanjungan Sekata are obsolete. This was recognised in the case of Justin Maurice Read v Petroliam Nasional Berhad  3 ILR 527, where a conversation was recorded surreptitiously on a handphone device and subsequently saved in a personal computer and later, on a pen drive. In finding that the handphone recordings were not admissible, the Industrial Court gave special attention to the fact that there was a break in the chain of possession and custody in the handling of the recordings and that the persons whose conversation were being recorded could not confirm the accuracy of the recordings. The Industrial Court also found that the claimant, who sought to admit the recordings, could not eliminate any doubt of tampering, altering or editing of the recordings. Further, the Industrial Court chastised the act of surreptitious recording as unethical. Despite this, it is important to note that there is no legal bar to the admissibility of covert recordings.
As such, even if covert recording is seen as distasteful or immoral, this in itself is insufficient to render the recording inadmissible.
Admissibility aside, could the covert recording of a workplace conversation by an employee amount to misconduct? The Industrial Court recently considered this in Izaidin Joinnie v Amanah Saham Sarawak Berhad  2 LNS 1787, where a Compliance Officer was dismissed from employment for his failure to act in the best interests of the company. At trial, it transpired that the Compliance Officer secretly tape recorded a board meeting of the company. While this was not one of the reasons for dismissal, the Industrial Court paid special attention to this act. The Industrial Court found this act so despicable and held, obiter, that the act of secret recording was the “ultimate act of incompatibility” and “there could be no excuse and no justification … for such an uncalled for act”. The Industrial Court further commented that by secretly recording the said board meeting, the Compliance Officer acted in breach of his duty of fidelity or good faith and confidence which he owed to the company and that the company cannot be expected to keep the Compliance Officer on its payroll. Ultimately, the Industrial Court dismissed the Compliance Officer’s claim of unjust dismissal.
Interestingly, none of the above cases conclusively determines whether the act of secret recording amounts to misconduct, and whether such misconduct warrants dismissal. Indeed, without clear case law confirming this, the surreptitious recording of a conversation at work is not, prima facie, evidence of misconduct.
This presents a risk to all businesses. The possible leak of a recorded workplace conversation discussing a client’s confidential information or revelation of data otherwise protected by law is only the tip of the iceberg. As such, the ability to surreptitiously record conversations at work is inherently hazardous. Left unchecked, this practice can turn the workplace into a hostile and defensive environment promoting self-preservation above teamwork. Colleagues will feel restrained in speaking freely and become suspicious of each other. Further, an employee recording multiple workplace conversations may ultimately collect a dossier of wrongdoings, to be kept as an arsenal for future leverage or as incriminating evidence in an unjust dismissal claim. Needless to say, the reputational damage to a business following such leaks can be most severe.
Employers are thus encouraged to address these risks swiftly and effectively. They can mitigate their exposure to risk by creating comprehensive policies on unacceptable conduct, including the secret recording of any workplace conversation regardless of the subject matter, and enforcing them consistently. If recording is necessary, all participants to a conversation should first be made aware of the same. Even if the law cannot catch up with modern trends quick enough, employers must be wise not to be left behind.