Case Background & Strategy

Surveillance technology is cheap and easy to obtain, but bringing it into the workplace without authorisation can cross firmly into serious misconduct. In a 2026 award, the Industrial Court of Malaysia upheld the dismissal of an employee who used a concealed camera pen to covertly record colleagues and senior management, and who used the material he gathered to intimidate co-workers. NG, Zainurul, Seke & Khoo acted for the employer, and the case is a useful illustration of how privacy, trust, and proportionality interact in dismissal disputes.

What did the employee actually do?

The employee worked in a security role at a hospitality establishment — an environment where guest and employee privacy is paramount. He brought an undeclared recording device, disguised as an ordinary pen, onto the premises. He demonstrated it to colleagues, told them he intended to use it to record conversations for reporting purposes, and claimed to hold photographs of other staff sleeping on duty. He went further, indicating that if anyone displeased him he would report them, using the captured material as leverage. On at least one occasion he covertly recorded a meeting with senior management without anyone’s knowledge or consent, and the device continued recording colleagues afterwards.

How did the employee try to justify it?

His defence was that the device was for self-protection against what he described as victimisation, and that it was really no different from a mobile phone. He also argued, somewhat technically, that the company’s code of conduct did not expressly prohibit carrying a “pen.”

Why did the Industrial Court reject those arguments?

The Court found the conduct went well beyond any genuine attempt at self-protection. Tellingly, not a single recording or photograph produced in evidence showed any victimisation of the employee — the very thing the device was supposedly meant to capture. Instead, the material showed him recording colleagues and management at will.

The Court emphasised the setting. In a hotel, where the organisation must guarantee the privacy and safety of its guests, the unauthorised possession and use of a concealed recording device is serious misconduct in itself, regardless of what was actually recorded. The risk that private moments of guests or staff could be captured was enough. The employee also admitted at trial that he never declared the device or sought authorisation, and that surveillance of colleagues formed no part of his job. By his own admissions he had breached the organisation’s privacy, confidentiality, workplace-safety and electronic-systems policies.

The Court was equally unimpressed by the intimidation aspect. An employee who genuinely wishes to report wrongdoing has a proper channel — in this case an ethics hotline the employee plainly knew about. Taking the law into his own hands and using captured material to pressure colleagues created an intimidating work environment that the organisation was entitled to treat as a fundamental breach.

Was dismissal a proportionate punishment?

Yes. The Court held that the misconduct was grave, that the organisation had proven all charges on the balance of probabilities, and that dismissal was proportionate to the nature and seriousness of what the employee had done. The dismissal was carried out with just cause and excuse, and the claim was dismissed.

Frequently asked questions

Can an employee be dismissed for secretly recording colleagues or management?

Yes, this can amount to serious misconduct, particularly where the recording is unauthorised, breaches company policy, and intrudes on the privacy of others. Using the material to intimidate colleagues makes the position considerably worse.

Does it matter that the recording device was “just a pen”?

No. What matters is the conduct — covert, unauthorised recording — not the form of the device. Courts look at substance over the label an employee tries to put on it.

What if the employee says they were only protecting themselves?

A self-protection argument carries little weight if no evidence of the alleged wrongdoing is produced and proper internal channels (such as an ethics hotline) were available but not used.

Why is the workplace setting relevant?

In privacy-sensitive industries such as hospitality, the mere possession and use of a concealed recording device can be serious misconduct because of the risk to the privacy of guests and staff, independent of what is ultimately captured.

Key takeaway for employers

A clear, well-communicated policy on personal electronic devices, privacy and confidentiality is one of the strongest defences an employer can have. Covert recording, and the use of captured material to intimidate colleagues, can constitute serious misconduct justifying dismissal — especially in privacy-sensitive industries. Maintain accessible reporting channels so that genuine grievances have a proper outlet, and document admissions and policy breaches carefully.