Answer:
Pursuant to the Civil Procedural Code[1], readable, audible, visible, and electronic materials are all considered legitimate sources of evidence. However, for the involved parties, when necessary, to use and submit to the competent court as evidence to defend their own views in the dispute, the sources of evidence, in addition to their clear contents related to the dispute, must meet certain conditions in terms of formality as stipulated in Article 95 of the Civil Procedural Code. In particular:
Audio-visual materials will be regarded as evidence if presented together with a written statement on their origin by the owner of such materials if they recorded sounds or images, or written confirmation by the person who supplied to the presenter with the source of such materials or the statement relating to the circumstances of that audio-visual recording; and
Electronic data messages will be expressed in the form of electronic data exchange, electronic document, electronic mail, telegraph, cable, facsimile, and other similar forms as prescribed by the law on electronic transactions. Accordingly, the evidence value of the electronic data is determined based on the reliability of the method of initialising, storing, or transmitting data messages; the method of ensuring and maintaining the integrity of the data message; the method of identifying the initialiser and other appropriate factors[2].
From the aforesaid provisions, the recorded audio, videotapes, or telephone messages presented by the parties during dispute settlement in general and a labour dispute, in particular, will not be automatically regarded as evidence approved by the Court, unless they meet the said conditions on formality. Specifically, in the case of labour disputes, phone messages and emails messages exchanged between an Employer and an Employee will be valid as evidence if the phone messages and emails are sent from the email accounts or phone numbers of the Employer and the Employee themselves.
For audio tapes of the content of meetings, phone conversations, these recording tapes will be considered as a legitimate evidence if the involved party presents along with the working minutes on the specific content of the recording tape (meeting minutes on handling labour discipline, working minutes on the evaluation of Employees regularly failing to complete the work etc.) with signatures of all the parties; written confirmation of the parties on the recording; or parties acknowledging before the competent Court the voices in the recording tape are their own voices or acknowledging the exchange content in the tape being true etc. If the Employer or the Employee arbitrarily does record without providing any written confirmation on its origin or relating to the recording content, the tapes recording the contents of the meetings and phone conversations will not be recognized by the Court as legitimate evidence, instead, it will only be used as references in the hearing process.
Nonetheless, it should be noted that for any labour dispute involving the illegal unilateral termination of LC or handling of labour discipline by the Employer, the burden of proof belongs to the Employer even though the Employee is the plaintiff in the proceedings[3]. Thus, although tapes on the content of meetings and phone conversations provided by the Employee to the Court (if any) may not be considered as evidence due to lack of written confirmation on their origins in accordance with the law as aforesaid, in the final analysis, the existence of such recording tapes does not change the burden of proof in this case. This is because the Employer is the party having the obligation of proving their decision on termination the LC and/or decision on handling labour discipline in accordance with the law.
[1] Article 94.1 of the Civil Procedural Code
[2]Article 14.2 of the Law on Electronic Transactions
[3] Article 91.1 (b) of the Civil Procedure Code
