Explained: Can you ever record a work conversation?

 

An employee’s compensation for unfair dismissal was recently cut because a secret recording was included as evidence. (Freepik pic)

PETALING JAYA: An employee’s compensation for unfair dismissal was slashed recently because a secret recording of a conversation was included as part of evidence.

The case raised questions about whether it’s ever legal or acceptable for such recordings to be made at work, and how workers can ensure they protect themselves in workplace disputes.

FMT spoke to Malaysian Employers Federation president Syed Hussain Syed Husman and employment lawyer Lim Zi-Han for their views.

Why do people do it?

Lim said it is still not uncommon for people to secretly record meetings in case of future disagreements. However, as the recent industrial court decision showed, this can work against the party that submits it.

He recalled a case where the court allowed an employee’s secret recording to be admitted as evidence but assigned minimal weight to it.

“The court viewed her evidence as not credible because (the person making the recording) would have intentionally said things on tape to improve their case, whereas the employer – unaware he was being recorded – was more likely to have been truthful.”

Why ‘secret’ recordings must be avoided

The Communications and Multimedia Act (CMA) and the Personal Data and Protection Act (PDPA) both lay out punishments for making secret recordings. Under the CMA, a convicted person can be fined up to RM50,000 or imprisoned for up to a year while the PDPA provides for fines up to RM300,000 or jail terms of up to two years.

Syed Hussain said that unconsented recordings could “turn the workplace into a hostile environment if left unchecked”. Instead, he advocated that bosses foster an environment that encourages open communication.

Don’t record – make records

However, Lim and Syed Hussain both agreed that having records of conversations is important but they should be made in a fair and transparent way, such as taking detailed minutes or disclosing that a discussion will be taped.

Lim also suggested sharing meeting recaps with participants so everybody involved can confirm and verify what they said.

However, if matters turned contentious and the temptation to take drastic action set in, Lim advised that legal advice be sought.

“Parties should also think carefully about the impact of adducing secret recordings as evidence. While secret recordings may be admissible as evidence, subject to the court assessing the weight of that evidence, it is better if all parties are aware that they are being recorded.” - FMT