1. Africa’s Legal Specialists.
The right to privacy is contained in the
Constitution and may be subject to limitation
only in terms of a law of general application.
It is probably with this right in mind that many
employees use an employer’s technical
facilities such as the employee’s laptop,
desktop, mobile phone, office telephone, and
so forth, without regard to the possibility that this
information may be accessed by the employer
and used against the employee. An employer
does not have an automatic right to access
the information of an employee contained on
its technical facilities or conveyed through its
telecommunications systems as this would be
an infringement of the employee’s right to
privacy.
Whilst the employer may be of the view that
by virtue of its ownership of the systems it can
access this information, this is not in fact the
case. The employee’s right to privacy extends
to those aspects in regard to which a legitimate
expectation of privacy can be harboured. The
courts will undertake a balancing exercise in
respect of these rights where a dispute arises
based on the issues mentioned above.
In Protea Technology ltd v Wainer the court
applied the balancing exercise referred
to above. In this case the court held that
telephonic discussions of the employee relating
to the employer’s affairs, that were recorded
by the employer without the knowledge
of the employee, are not protected under
the Constitution and that if the employee is
engaged in an act that violates the interests of
the employer the latter has an added interest.
The Court furthermore held that as soon as
the employee abandons the private sphere
of his conversation to that of the affairs of the
employer he loses the benefit of privacy.
We recently encountered a case where an
employee entered into an employment contract
with the employer that included a clause that
the employee enjoyed no right to privacy in
relation to the use of the company’s facilities
and that furthermore the employee consented
to the company monitoring communication
that went through the facilities of the company.
The employer subsequently laid charges of
misconduct against the employee and relied
on communication from a personal email
account but that was opened on the company
laptop and communication conveyed through
the company networks as the basis of their
case. Whilst one is inclined to take offence to
the conduct of the employer, it must be borne
in mind that the employer sought to protect
its economic interest in including this clause
and when it became aware that the conduct
of the employee could impact on this it took
steps against the employee that the employee
consented to in the employment contract.
Where there is evidence that is obtained by the
employer that shows that the employee sought
to infringe on the right of the employer to trade
the court will be hard pressed to protect the
privacy of the employee as was clearly seen in
the Protea Technology case. This will be more
so where the employee is bound by a restraint
of trade provision.
It is important for the employer to protect its
interests and there are legal mechanisms to
assist with this. The Regulation of Interception
of Communications and Provision of
Communication Related Information Act
comes to the rescue of employers in this regard.
This statute states that while there is an inherent
prohibition against intercepting information
which is not meant to be conveyed to anyone
other than the parties it is addressed to, there
is a limitation to this prohibition. In order to not
fall foul of the limitation the person intercepting
the information must obtain the written consent
of the person whose information they may
intercept and reasonable steps to inform the
affected party of this must be taken.
Furthermore, the Electronic Communications
and Transactions Act allows the person
obtaining consent to do so digitally. This means
that implied consent will also be taken into
account where an employee accesses and
uses the facilities of an employer after having
been informed that such use may be monitored
by the employer.
Therefore, in order for an employer to be able
to access the information of an employee they
must have obtained written consent, which
consent can be included in the employment
agreement or alternatively the employee’s
attention can be drawn to this when they
access the system.
The employee should be reminded that there
need not be any right to privacy infringed so
long as they do not use the employer’s facilities
for private matters. It is also important for the
employee to note that any such use of facilities
for private matters can easily be construed
to have taken place during working hours,
which is the period within which the employee
contractually undertook to devote their time
and attention to furthering the interests of
the employer. Any conduct contrary to this
undertaking amounts to misconduct and can
and will be used against the employee.
For further information, please feel free to
contact:
Manisha Maganbhai-Mooloo
manisha.mooloo@adamsadams.com
Khanyisile Khanyile
khanyisile.khanyile@adamsadams.com
RIGHT TO PRIVACY OR NOT?