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Electronic Communications and Employee Privacy

Written by Jan Truter

When employees send e-mails, they dont always anticipate where an e-mail mighteventually 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

employees right to privacy?In the CCMA case ofNeethling 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 employers letterhead purporting to be themanaging 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

employers 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. Theemployer 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 employers

approach, concluding, amongst others, that that the employees constitutional right to privacy had beeninfringed 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 ofSharwood vs CNBC Africa involved a dispute regarding the dismissal of the

employers Bureau Chief. She had allegedly sent certain e-mails, which the employer considered

undesirable, during working hours using the companys system. The employee raised the point thatthese 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 onlywith 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 thee-mail communications were the property of the company. It prohibited unacceptable usage, which

included the making of derogatory or inflammatory remarks. The employees contract of employment

further stated that The employee agrees that (s)he has no individual right to privacy regarding anypart of the companys 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 anotherargument was that, although reference was made to a fellow employee, the employees e-mails had

been sent to friends and family. Accordingly, so it was argued, she had a legitimate expectation of

privacy.

The companys representative argued that there had been no breach of privacy. The Regulation ofInterception 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 employers computer, the employee had specifically authorised the employer to

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monitor all her electronic communications. It was implicit in the word monitor that the employercould read the e-mails.

The CCMA commissioner in the CNBC Africa-case had little difficulty accepting the employers

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 commissioners view was that the employer couldread the employees 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 givenconsent for the interception of her e-mails. The commissioner accordingly admitted the e-mails asevidence 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 specificreference to Section 5 of RICA, which deals with the aspect of consent. The employees 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 dailybusiness 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 employees right to privacy is tested in the Constitutional

Court, particularly in relation to the interception of electronic communications.

Jan Truter ofwww.labourwise.co.zawww.labourwise.co.za is an on-line labour relations service aimed at assisting employers with the

implementation of effective labour relations. They can be contacted via the website

orinfo@labourwise.co.za