AAUSA on behalf on Ncube v Northern Crime Security CC (1999) 20 ILJ 1954 (CCMA)
- Abusive and threatening language by an employee can be such as to make a continued working relationship intolerable, justifying dismissal.
- Tape recordings made of a phone conversation between manager and employee are admissible as evidence and they do not contravene s 2(1) of the Interception and Monitoring Prohibition Act 1990 because they were recordings of conversations directly between the employee and the manager. Such recordings are not a violation of the privacy right.
The employee was dismissed after a disciplinary enquiry for using threatening and abusive language to a manager. Some of these phone conversations had been tape recorded by the employer. At the CCMA the employee alleged inconsistency on the part of the employer because the manager had only received a warning despite also using abusive language. Also it was argued that dismissal was too severe a sanction as the matter had been resolved by mutual apology. The employee challenged the admissibility of the tape recordings. The commissioner found that the recordings were not made in contravention of s 2(1) of the Interception and Monitoring Prohibition Act 1990 because they were recordings of conversations directly between the employee and the manager and so were not ‘interceptions’ in the sense intended by the Act. The commissioner did not regard the recordings as a violation of the privacy right. Regarding the abusive language, the employee had used exceptionally violent threats of death and sexual assault on the manager’s wife. The manager admitted calling the employee a kaffir. The commissioner found that while calling someone a kaffir at work could be a dismissible offence, the manager’s remark was made after extreme and sustained provocation. On the other hand the employee’s threats could not be justified and rendered a continued working relationship intolerable. The dismissal was found to be procedurally and substantively fair.
Extract from the award:
[At 1959F] In my view, the kind of considerations below would be relevant in the circumstances of the present case:
- The tapes were evidence of a communication between the applicant and Mr K or Mr R and not evidence of private communications between the applicant and third parties;
- The tapes were tendered as confirmatory evidence of communications made in the course of work between an employee and his superior;
- Both Mr R and Mr K could and did testify orally as to what the applicant said to them without such evidence being excluded;
- The recording was not part of systematic monitoring of all conversations of employees without their knowledge by management, but was only instituted after the applicant had twice made such threats to Mr R and the monitoring was done for the purpose of supporting oral testimony that such threats were made by the applicant;
- Mr K was reasonably concerned that because the threats had only been made to one person on most occasions, it would be difficult to establish more decisive proof of the utterances complained of;
- Mr K had a legitimate interest in gathering confirmatory evidence of the threats uttered by the applicant towards him;
- The communication did not reveal any personal details of confidential information about the applicant;
- The publication of the communication was for the limited purpose of disciplinary and arbitration proceedings only and there was no suggestion it was inspired by malice or an intention to demean, embarrass or insult the applicant, and
- The evidence of the recordings was directly related to the misconduct with which the applicant was charged.
[At 1963D] It is also self-evident that utterances like those made by the applicant to a manager of the respondent, render the continuation of the relationship intolerable.