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Probative value of recordings made by workers with mobile

The Civil Division of the Supreme Court has accepted recordings made in public by an employee at the company´s front door without the consent of her superior.

In the case analyzed by the Supreme Court, the defendant had suffered harassment from the company aimed at making her resign from her job and eventually forcing her to leave the company. Prior to this incident, the employee arrived at work and as she got out of her car, began to record with her phone in order to demonstrate the harassment she was suffering.

The employer, furious with his employee for recording him, promised to sue her for invasion of privacy and for the violation of the company´s constitutional rights. The recording, which at first was not broadcast at the trial, clearly showed how the employee´s superior handed her a letter, inviting her to leave the company and give back all company belongings in her possession. The employee considered the actions taken by her superior as dismissive and requested that the judge use the recording as proof of her claim.

Under these circumstances, it was up to the Court to decide whether the recording would affect the sphere of personal privacy of the company.

The court concluded the judgment by stating that “the defendant’s conduct did not involve an unlawful interference with the right to privacy of the complainant (superior) because the manager was acting as a proxy for the company on company business that was in no way connected to his personal privacy, and in any event, the conversation recorded did not deal with reserved information unknown to others“.

The employee said she had been the victim of continued verbal and written harassment, deliberate and systematic non-payment of salary, workplace ostracism, constant “undue sanctions” and other behavior aimed at pressuring her to resign.

According to the Court, the defendant began recording as she left her car and headed to the company entrance, “worried about what would happen to her, work-wise”. The Supreme Court ruling said the environment of conflict and allegations of harassment added “a note of reasonability to the defendant’s behavior. Whatever the purpose of the communication is, the Constitution is aimed at ensuring impenetrability by third parties to said communication“. Based on this doctrine, and since the recorded communication only involved the participating plaintiff and defendant, the court considered that no violation of constitutional rights had taken place. Moreover, the court ordered the plaintiff to pay the legal costs of the appeal.

Therefore, we can see how recordings made of her superior by a worker are valid during court proceedings. Any recording of this kind is recognized as valid, as long as it does not include information which is strictly confidential to the company and does not interfere with the human rights of the person in the terms established by the Constitution.

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