In a recent decision, the Industrial Court has ruled that secret recordings of meetings are admissible as evidence in dismissal cases.
The ruling came in a case where an employee of Agarcorp Sdn Bhd admitted to several wrongdoings during a meeting with the company’s managers, unaware that the meeting was being secretly recorded. He was subsequently dismissed, and proceeded to file a complaint with the Industrial Relations Department. The company then presented the secret recordings as evidence of unfair treatment. The Industrial Court deemed these recordings admissible, stating that they provided valuable insight into the circumstances leading to the dismissal.
This decision has far-reaching implications for both employers and employees. For employees, it offers a new avenue to substantiate claims of unfair treatment or wrongful dismissal. And for employers, it can be used as a mode of weaning a confession out of their employees who have transgressed.
One major issue here is that secret recordings are generally in breach of the principle of one’s right to privacy. However, the laws of privacy in Malaysia are still very underdeveloped; in the case of Dr Bernadine Malini Martin v. MPH Magazines Sdn Bhd & Ors [2006] 2 CLJ 1117, the court found that while it is “unfortunate for the plaintiff, that the law of this country, as it stands presently, does not make an invasion of privacy an actionable wrongdoing”. This decision was eventually upheld by the Court of Appeal.
On top of that, the Malaysian courts are usually of the position that evidence can be admitted even if it was obtained illegally. As recently as 2020, the Federal Court in Benjamin William Hawkes v Public Prosecutor [2020] 5 MLJ 417 once again affirmed the adoption of Lord Goddard’s ruling in Kuruma v The Queen [1955] AC 197 51A that evidence acquired improperly would not “statutorily prevent the prosecution from tendering the documents … it is only procedural and not evidential. It is trite law that even in cases of evidence obtained illegally, its admissibility is unaffected as the issue is actually relevancy”.
Hence, admissibility is not an issue. There has been precedent in both the civil courts and industrial courts that secret recordings are admissible as evidence.
But be warned: secret recordings are not to be made willy-nilly. The intention behind the making of a secret recording is crucial. The court has frowned upon cases where the secret recordings made were irrelevant to the dispute (i.e. the dismissal or the cause thereof). For instance, in Izaidin Joinnie v Amanah Saham Sarawak Berhad [2018] 2 LNS 1787, it transpired that an officer of the company who had been fired had secretly recorded a board meeting that was in no way related to his dismissal, and the court had found that his action to be “in breach of his duty of fidelity or good faith… that the company cannot be expected to keep the [him] on its payroll”. He lost his case of unjust dismissal.
On the other hand, employers must now exercise greater caution in their interactions with employees. The ruling underscores the importance of transparency and fairness in disciplinary proceedings and meetings related to employment matters. Employers must ensure that their actions are well-documented and adhere to established protocols to mitigate the risk of disputes arising from secret recordings. After all, while the Personal Data Protection Act 2010 offers protection for your personal data, your privacy itself is not covered by it.
On a final note, we remind our followers that there while there is still no specific prohibition against recording people without their consent, this only applies to when they are in public (i.e. taking pictures of people on the street). Taking pictures or videos of people in their private spaces is an offence that is usually charged under Section 509 of the Penal Code for insulting the modesty of a person