When employees send e-mails, they don’t always anticipate where an e-mail might eventually end up. Where the content of an e-mail is considered to be undesirable, it could lead to unfortunate consequences for the employee. But what about the employee’s right to privacy?
In the CCMA case of Neethling vs South African Fruit Terminals (SAFT) an employee was allegedly soliciting potential Russian brides via e-mail from his work computer during working hours. According to the evidence, he even used the employer’s letterhead purporting to be the managing director of the company and offering her a job to facilitate her immigration to South Africa.
The employer gained access to his computer and confiscated it pending a disciplinary hearing. The employer’s problem was that the contract of employment did not make any reference to e-mail and internet use, nor did the company have any rules or policies governing electronic communications. The employer had been quite casual in allowing employees to use their computers and electronic communication for private purposes. The commissioner did not have sympathy with the employer’s approach, concluding, amongst others, that that the employee’s constitutional right to privacy had been infringed and that the evidence of the e-mail communications could not be used as evidence. The company was ordered to pay the employee compensation.
The more recent case of Sharwood vs CNBC Africa involved a dispute regarding the dismissal of the employer’s Bureau Chief. She had allegedly sent certain e-mails, which the employer considered undesirable, during working hours using the company’s system. The employee raised the point that these e-mails were accessed by the company in contravention to her constitutional right to privacy. She argued that the e-mails could not be used as evidence. The in limine award of the CCMA deals only with the question of the admissibility of this evidence.
Unlike the SAFT -case the company had an e-mail policy that stated that all e-mail addresses and the e-mail communications were the property of the company. It prohibited “unacceptable usage”, which included the making of derogatory or inflammatory remarks. The employee’s contract of employment further stated that “The employee agrees that (s)he has no individual right to privacy regarding any part of the company’s premises or property”. It contained a further provision stating that “The employee authorises the company to monitor all electronic communications or web-based activities of the employee”.
On behalf of the employee it was argued that the blanket ban on the right to privacy on company premises was contrary to public policy, and could therefore not be enforced. It was further argued that the right to “monitor” her e-mails did not give the company the right to read them. Yet another argument was that, although reference was made to a fellow employee, the employee’s e-mails had been sent to friends and family. Accordingly, so it was argued, she had a legitimate expectation of privacy.
The company’s representative argued that there had been no breach of privacy. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA) provides for an employer, in the course of carrying on a business, to intercept an “indirect communication”, such as an e-mail. Moreover, apart from the fact that the employee had sent the e-mails from the employer’s computer, the employee had specifically authorised the employer to monitor all her electronic communications. It was implicit in the word “monitor” that the employer could read the e-mails.
The CCMA commissioner in the CNBC Africa-case had little difficulty accepting the employer’s argument. He said that the employer was entitled to set conditions for the use of its e-mail facilities, including the right to monitor communications. The commissioner’s view was that the employer could read the employee’s e-mails in order to assess whether she was abusing the facilities in breach of company policy. He accepted that the e-mails were business-related and that the employee had given consent for the interception of her e-mails. The commissioner accordingly admitted the e-mails as evidence in the hearing.
During the case reference was made to Section 6 of RICA, which deals with interception of indirect communications in the course of carrying on of the business. It would seem that there was no specific reference to Section 5 of RICA, which deals with the aspect of consent. The employee’s consent alone would probably have been enough to justify the interception of her e-mails.
As can be seen, the issue of privacy in the use of electronic communication at work can be fraught with legal technicalities. Yet, electronic communication has become increasingly important in our daily business interactions. Employers must be prepared to face possible disputes in this area. It is probably just a matter of time before the extent of an employee’s right to privacy is tested in the Constitutional Court, particularly in relation to the interception of electronic communications.
Jan Truter of www.labourwise.co.za