Secret recordings of meetings admissible in dismissal cases, says Industrial Court

The Industrial Court has ruled that Agarcorp Sdn Bhd’s termination of the employment of its sales and marketing manager M Jegan five years ago was lawful. (Facebook pic)

KUALA LUMPUR: The Industrial Court here has ruled that it can admit into evidence secret recordings of meetings in dismissal cases.

Chairman D Paramalingam said the court could consider such evidence, even if illegally obtained, to determine a fact in dispute.

He also said that proceedings under the Industrial Relations Act 1967 are not bound by the stringent rules governing evidence in civil and criminal court proceedings.

In an 82-page award released last week, Paramalingan dismissed an objection raised by M Jagen on the admissibility of such an audio recording.

He went on to rule that Agarcorp Sdn Bhd had validly dismissed the services of its sales and marketing manager effective Jan 31, 2019.

Jagen contended that the recording of a meeting he had on Jan 28, 2019 with Agarcorp’s general manager Farid Anwar Naidu Abdul Manan, finance manager Sha Mahani Rudin and company lawyer Jeffrey John, was not admissible in evidence.

He claimed that the recording, in which he made several admissions, was recorded by the company’s service manager Carlos Matheus illegally and without his knowledge.

He said the recording did not satisfy the test for the admissibility of audio recordings as laid down in the criminal case of Mohd Ali Jaafar vs PP (1998).

Matheus testified that he had used his mobile phone to record the conversation, which was played in court. He also identified the voices of Farid, Sha Mahani and John in the recording.

In addition, the company secured a forensic assessment of the authenticity and veracity of the audio recording from Scribe Synergy Sdn Bhd.

Scribe’s CEO, Sandesh Kabir Singh, told the court the recording had not been tampered with.

Paramalingam also noted that Jegan was present when the recording was played in court but had failed to challenge Sandesh’s report and testimony.

“Based on the prevailing law and mindful that this court has to act in equity and good conscience without being shackled by technical impediments, this court allows the audio recording to be admitted as evidence, as it is relevant and will assist in determining the facts in dispute between both parties,” he said.

Paramalingam found that the employer had on Jan 31, 2019 demanded RM150,000 compensation from Jegan for losses suffered by Agarcorp due to its business being siphoned off by Ensetcorp Sdn Bhd, a third party.

He also noted that the company had threatened to institute disciplinary proceedings against Jegan if the demand was not acceded to.

Jegan instead proceeded to file a complaint with the industrial relations department on Feb 4, 2020.

Paramalingam said he was satisfied that Agarcorp had succeeded in proving Jegan’s involvement in Ensetcorp through his brother, which he had concealed from the company.

“A conflict of interest arose when the claimant and his purported ‘brother Jega’ actively involved themselves in carrying out services on behalf of Ensetcorp in direct competition with the company,” he said.

He also said the misconduct complained of by the company was serious in nature.

Paramalingam said the punishment of dismissal meted out by the company in the circumstances of the case was proportionate to the act of misconduct complained of.

The court found that Jegan had acted in a manner against the company’s best interests and the faithful discharge of his duty.

“No amount of long years of service in the company could repair the damage to the shattered trust and confidence that the company had reposed in the claimant,” said Paramalingam.

Jagen joined the company in 2007.

His last drawn salary was RM11,300 per month. He was also entitled to a commission of 1% of all sales secured.