January 26, 2017

Monitoring privacy in the workplace

Sabina Chivasa

The issue of privacy in the workplace becomes somewhat of a sticking point, especially in cases where an employee makes use of a company resources, such as a laptop. Even though the laptop is company property, emails – work or personal – are private, and employers may not go through them.

The Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002 (‘the Act’) prohibits the interception of communication. Any person who intentionally intercepts or attempts to do so, or authorizes or procures any other person to do so, is guilty of an offence. If an employer is not a party to communication, he or she will not be able to intercept the communication on the strength of this section. However, an employer is free to intercept information such as invoices or other communication sent under the company’s letterhead if such interception is effected by or with the express or implied consent of the system controller. The Act is not clear exactly on the definition of this term and I am of the view that this would fall under the IT department. So whoever is in charge of the IT system would have to either carry out the interception themselves or the employer would have to have his consent in order to do so.

The employer would have to explain why he or she is intercepting this information, and could argue that it is for the purpose of monitoring indirect communication in order to establish the existence of facts as well as for the purposes of investigating or detecting the unauthorized use of the telecommunications system.

If an employer intercepts communication without consent or a clearly communicated policy, the employer will be in contravention of the Act. Evidence obtained in this may be inadmissible in disciplinary hearings or at the CCMA, however a mere finding that evidence was illegally obtained does not, however, render the evidence inadmissible.

In S v Dzukuda 2000 (2) SACR 443 (CC) the court explained that it would simply not be possible to draw up a fixed list to determine whether illegally obtained evidence should be admitted but that the following ought to be considered;

  • prejudice to the accused;
  • the interests of society;
  • and public policy.

In S v Mphala 1986 (1) SACR 368 (W) the court highlighted that exclusion must be favoured where it would have a detrimental effect on the administration of justice.

In this regard, both the interests of the employer and the employee must be considered.  It must be taken into consideration the fact that the computer and network access is usually provided by the employer as a business tool, and that, as a rule, it remains the property of the employer.

Secondly, there is the constitutional right to privacy of the employee. The Constitution provides that everyone has the right to privacy, which includes the right not to have the privacy of their communications infringed. This should be balanced against the very real business and operational concern – that employees may be using the employer’s computer and network access to, either waste time and network resources, or to download pornography or other offensive material from the internet and forward it to others, exposing the employer to viruses that can cripple its network. In our particular case, fraudulent activity which lead to the loss of potential profits. There are also very real confidentiality issues such as disclosure of confidential information belonging to the employer, on email.

If you require assistance with regards to Labour Law, contact Robin Twaddle and Associates.

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