The Supreme Court recently held that an employer had been unjustified to summarily dismiss an employee with retroactive effect after discovering that he had covertly recorded a conversation with his manager.
The court had to decide whether the employee's secret audio recording could be regarded as a material breach of the employment relationship and justify summary dismissal.
The case concerned a customer adviser who disagreed with his employer about his right to commission. The disagreement culminated in a meeting in which the customer adviser and his manager argued, which ended with the customer adviser throwing a computer mouse across the room.
The customer adviser left the workplace a few hours later. The following day, the employer informed him that the fact that he had left the workplace meant that he had resigned with immediate effect. When the customer adviser disagreed, he was dismissed summarily on the grounds that he had left the workplace without authorisation. The customer adviser did not believe that the summary dismissal was justified and brought an action against his employer.
During the district court case, it emerged that the customer adviser had recorded the conversation with his manager. This led to the employer summarily dismissing him effective from the date of the conversation on the grounds of the recording.
The district court and the high court found in favour of the employer, the latter on the ground that the customer adviser's audio recording, which had been made without the manager's knowledge, constituted a material breach of the duty of loyalty in the employment relationship and justified the dismissal. The high court also held that the summary dismissal should be effective from the date of the recording.
The Supreme Court initially stated that the assessment of whether an employee's secret audio recording of a conversation with their employer constitutes a breach of their terms of employment is based on "a specific assessment of the interests of the employee vis-à-vis the interests of the employer and other parties concerned".
The court then stated that it is impossible to give an exhaustive list of the criteria for this assessment. Emphasis must be placed on the purpose of and background to the audio recording, including whether an employee has the opportunity to secure evidence that their employer is violating their rights. In addition, the information that the employee intended to record should be taken into account, including whether the information concerned purely private matters or information that "should be confidential for the sake of the company or others".
During the hearing before the Supreme Court, the customer adviser claimed that he had recorded the meeting with his manager solely for his own use so that he had a record of what had been said during the conversation. The meeting occurred so spontaneously that the customer adviser had not had the opportunity to bring someone to the meeting to document it.
The Supreme Court found that the purpose of and background to the audio recording, as well as its contents and the customer adviser's subsequent use of it, were justified for objective reasons and that the interests of the manager and other employees did not outweigh this interest. Therefore, the Supreme Court found that there was no basis for dismissing the customer adviser with or without notice on grounds relating to the covert audio recording.
The Supreme Court's judgment does not change the fact that an employee's covert audio recording of a conversation with their employer and the retention and use of such a recording can constitute a material breach of their employment relationship. However, this will be appraised based on a concrete assessment of the balance between the interests of employees, employers and other affected parties.
The Supreme Court – unlike the high court – does not immediately appear to attach importance to an employee's duty of loyalty, which is surprising. However, this can probably be attributed to the special circumstances of the case.
Notwithstanding the above, the Supreme Court judgment does not change the fact that, based on the rights of management, an employer can always set the framework for how meetings, service interviews, disciplinary meetings and other encounters must take place. It is therefore up to employers to decide whether employees should be allowed to record conversations.
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