Secretly recording your boss: Allowable under RICA but problematic under the LRA
30 September 2019
Very recently, the Amabhungane Centre for Investigative Journalism challenged portions of the Regulation of Interception of Communication and Provision of Communication Related Information Act (RICA) in the Pretoria High Court.
In making his finding, Judge Sutherland found that those sections of RICA which allowed surveillance of a person's communications were unconstitutional. This finding has been hailed as a victory for greater freedom from unlawful surveillance. However, RICA is a broad act which covers a number of situations, and this judgement should not be viewed as invalidating RICA in its entirety. It is important to note that, where it comes to communications between individuals, especially where there is an employment relationship, RICA has an interesting intersection with labour laws.
Given the widespread availability of phones, devices and apps which enable a user to easily record conversations, and the need to hide or disguise the device, the tendering of digital recordings by employees of meetings, conversations or discussions with their employers, as evidence in disputes, is becoming more frequent. However, is the act of recording a private conversation in secret, without informing the employer that it is being done, a form of actionable misconduct even if this is legal under RICA?
This issue requires consideration of the tension between the right of any person to record a conversation (provided that such person is a party to and has consented to the recording) and the principle that an employment relationship is based on an implicit trust between an employer and an employee. Can the assertion be made that, where recording has taken place in secret, that the employee's conduct has led to the breakdown of this trust relationship?