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Employer and employee hold an off the record meeting set up by the employer. During the meeting the employer promises to give the employee a promotion. Unbeknown to the employer the employee digitally records the meeting. The recording shows that it was an off the record meeting and that the employer promised to promote the employee. The employer later refuses to promote the employee arguing that the promise was made off the record. Can the employee successfully use the digital recording at the CCMA unfair labour practice arbitration?
A “Without prejudice” communication made by one party to another in an attempt to negotiate settlement of a dispute or a debt is inadmissible in a court (and this would apply equally to the CCMA) and therefore a party to the proceedings cannot use such communication as evidence. The following are examples of exceptions to the rule.
1. Fraud or Misrepresentation: If the communication involves fraud, misrepresentation, or any other form of dishonesty, it can be used as evidence.
2. Waiver: If both parties agree to waive the “without prejudice” privilege, the communication can be admitted.
3. Establishing an Agreement: If the communication is used to prove that a settlement agreement was reached, it can be admitted.
4. Costs: In some cases, “without prejudice” communications can be used to determine the issue of costs in litigation.
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