ABOUT SECRETLY RECORDED AUDIO CONVERSATIONS
By George Nkhuwa
Namenda Sylvia Sindila and Harriet Kasanda Chisanga were employed in the Human Resources Department at InterContinental Hotel. The two were accused by the General Manager of the hotel, through the Human Resources Director, of leaking information relating to negotiations on conditions of service to unionised staff.
According to Namenda and Chisanga, the Human Resources Director subsequently advised them to either resign or opt for transfer to other departments. Unknown to the Human Resources Director, Namenda secretly recorded the conversation between herself and the Director using her mobile phone.
A few days later, the two received letters terminating their employment. In those letters, InterContinental Hotel invoked the termination clause in their contracts of employment and terminated Namenda’s and Chisanga’s contracts by paying salary in lieu of notice.
Aggrieved by these events, Namenda and Chisanga commenced proceedings in the Industrial Relations Division of the High Court, alleging, inter alia, that their termination was wrongful. They contended that they were dismissed based on unproven allegations of leaking confidential industrial relations information to unionised staff and that they were neither formally charged nor accorded a hearing, contrary to the rules of natural justice.
During the proceedings, Namenda produced a compact disc (CD) containing the secretly recorded audio conversation between herself and the Human Resources Director, which corroborated the duo’s version of events.
InterContinental Hotel objected to the admission of the CD into evidence on the grounds that it constituted secondary evidence recorded on a mobile phone that was not produced before the Court and that the recordings were not authenticated.
The hotel further argued that section 64 of the Electronic Communications and Transactions Act prohibited the interception of communications and that the audio recording should therefore be excluded since Namenda had covertly recorded her conversation with the Human Resources Director without his knowledge.
The High Court admitted the CD into evidence, holding that the secret audio recording would not prejudice InterContinental Hotel but would assist the Court in fulfilling its mandate to administer substantive justice. The Court further found that Namenda’s and Chisanga’s employment was terminated on account of allegations that they had leaked information concerning discussions with management on industrial relations matters.
The Court consequently awarded the two employees damages equivalent to twenty four months’ salaries for wrongful termination of employment.
Dissatisfied with the decision of the High Court, InterContinental Hotel appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal, holding, inter alia, that the termination was wrongful and that covert recordings made by a party to a conversation are admissible in evidence, particularly where the maker of the recording testifies and explains its contents. Accordingly, issues of unlawful “interception” under electronic communications law did not arise. The Court further held that questions of authenticity did not arise because the recording was tendered by its maker.
The Court reaffirmed that the Industrial Relations Court is entitled to go behind the employer’s stated reason for termination in order to redress real injustices.
The Court of Appeal also upheld the award of twenty four months’ salary as damages.
This decision highlights that a secretly recorded conversation is admissible in evidence in Zambia where the person making the recording is a party to the conversation, testifies to its contents, and relies on it to establish the true substance of contested events; such recording does not amount to unlawful interception.
Case Citation: Marasa Holdings Limited (T/A Intercontinental Hotel) v Namenda Sylvia Sindila and Anor (APPEAL NO. 60/2017) [2019] ZMCA 438 (9 October 2019)