Good day everyone, and welcome to another discussion in our “What if” series, where we bring you insights, in the format of a “what if” question, on the ever-evolving landscape of employment law.
I am Ross from Maserumule Corporate Employment Law, and today we are unpacking:
What if an employee secretly records a meeting at work – is it lawful, and what are the legal implications?
Most people assume recording a conversation without telling the other person is illegal. In South Africa, it generally isn’t.
The law here is the Regulation of Interception of Communications Act. You know it as RICA, the law that requires you to register your SIM card. It also makes it a crime to listen in on or record other people’s conversations. But there is one big exception: if you are part of the conversation yourself, you may record it without telling anyone, as long as you are not doing it to commit a crime.
So if it’s legal, can you still be dismissed for it? In October 2026 the Labour Court dealt with an employee dismissed for allegedly doing exactly that. Let’s get into it.
Ms Mkhize was a transportation planner at manufacturing company, with ten years’ service and a clean record. On the employer’s evidence, her relationship with a colleague, Ms Moodley, had soured badly enough to divide the department into camps and affect operations.
In 2023, the company arranged a reconciliation meeting between the two to clear the air.
In January 2024, Ms Mkhize went to HR with a complaint about Ms Moodley. Two managers testified that she played them a recording of that 2023 meeting – made, they say, without anyone there knowing.
They say she agreed to hand it over, then didn’t – and later denied that any recording existed.
Ms Moodley, when called in, confirmed, they say, that she too had secretly recorded the same meeting.
Both were disciplined and dismissed. Ms Mkhize’s charge was inappropriate behaviour – recording a meeting called to reconcile their relationship, without telling anyone.
Now, remember RICA. Anyone sitting in that meeting was part of the conversation, so recording it was, on the face of it, legal. The Court never had to decide that – because illegality was never the charge.
The company didn’t say “this was illegal.” It said “this was inappropriate.” On its version, a meeting called in good faith to rebuild trust had been turned into an evidence-gathering exercise against each other. The chairperson said he wouldn’t have minded a recording – what disappointed him was not being told.
There was a further difficulty. Ms Mkhize denied the recording existed – meaning two managers who said they’d heard it were, on her version, lying. That, the employer said, destroyed trust: she couldn’t be sent back to report to managers she’d accused of dishonesty.
The code also prescribed a final warning for a first offence of inappropriate behaviour. The company’s answer: it’s a guideline, and the seriousness justified the deviation.
At the bargaining council, the arbitrator found the dismissal substantively unfair and ordered reinstatement and payment of over R328 000 – essentially because the employer couldn’t produce the recording.
The Labour Court set that award aside – not because it found the dismissal fair, but because of how the arbitrator handled the evidence. Faced with two conflicting versions, she had to assess credibility and weigh probabilities. She didn’t. Two managers said they heard the recording and had no reason to invent it; Ms Mkhize could suggest none. That was never weighed. Instead, she preferred the chairperson’s evidence that he never saw her record – hardly surprising for a secret recording.
She also accepted as undisputed that the recording device belonged to the company, so the employer should have retrieved it – a version never put to its witnesses. The Court labelled that speculation.
The matter was sent back for a fresh hearing before a different commissioner, on substantive fairness only. So two questions remain open – did she record the meeting, and if so, was dismissal fair?
So what should employers take from this? Two things.
- First – lawful is not the same as acceptable. This case doesn’t decide whether a lawful secret recording justifies dismissal, so put your rule on covert recording in writing – and build the case on your code and the breach of trust, not on illegality.
- Second – charge what you rely on. The employer leaned heavily on the denial, yet the only charge was the recording. If dishonesty is the complaint, charge it and lead evidence.
A final thought. Phones, smart watches, and now glasses that record video – recording has never been easier. The law on who may record is fairly settled. What a recording does to workplace trust is the real risk.
Which brings us to you. If the new commissioner finds that Ms Mkhize did record the meeting, was dismissal fair – or was a final warning, as the code provides, appropriate? And should the denial tip the scale? Le us in the comments.
That brings us to the end of this week’s discussion. Thank you for joining us.
If you have any questions or comments, we would love to hear from you – find us on social media, or email me at
ross@masconsulting.co.za.
Until next time – good-bye.
