Electronic Communications and Employee Privacy

Written by Jan Truter

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

www.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