A recent study at company employing 600 employees found that employees spend almost 79% of their working time on gaming and Internet sites such as Facebook. In another study it was found that almost 80% of the e-mail sent and received by employees during working hours were of a private nature. One can only imagine what the productivity levels are in those companies.
The interception of communication is currently regulated by the Regulation of Interception of Communications and Provision of Communication Related Information act 70 of 2002. The interception of communication in prohibited in terms of section 2 in that, subject to this Act, no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept, at any place in the Republic, any communication in the course of its occurrence or transmission.
In terms of section 4, any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence. Furthermore, any person, other than a law enforcement officer, may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception, unless such communication is intercepted for purposes of committing an offence.
Any person who intentionally intercepts or attempts to do so, or authorises or procures any other person to intercept, is guilty of an offence.
The question therefore is whether an employer has the right of access to or to confiscate the employee’s computer and to intercept and read employees' e-mail?
In this regard, both the interests of the employer and the employee should be considered. Firstly, one should consider 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. There are also very real confidentiality issues such as disclosure of confidential information belonging to the employer, on email.
From the language of section 2 mentioned above it appears that the section is wide enough to include e-mail within the scope of the prohibition. An employer is prohibited from intercepting e-mail or other electronic messages at any stage during the existence or the transfer of that message, from one point to another. This also gives effect to the Constitution as an employer must respect the privacy of the employee and his communications via email or telephone.
It should however be noted that the Act does not absolutely prohibits interception. An interception direction can be obtained to authorise the interception of communications, or the employee can consent to interception. Consent should be given freely, without duress and within the framework of fairness.
Employers can employ various means to regulate email and internet use, or then abuse. Firstly, employers can electronically regulate what the employee can use and access. This can mean, for example, that an employee may send and receive e-mail only within the organisation, and that no external e-mail is allowed. This would probably be an unrealistic approach. Another solution is regulating the attachments employees can receive in emails.
Secondly, employers must draft and implement email and internet policies, regulating the use of internet and email more comprehensively and specifically regulating what the consequences of non-compliance would be, for example, setting out the specific conduct and the sanctions it would attract. Employees should also be requested to inform third parties that their emails may be intercepted by the employer. A message to this effect can be added to the bottom of emails.
What does this mean for practical, day-to-day purposes? Firstly, that if an employer intercepts and reads employees' e-mails without consent or a clearly communicated policy, the employer will be contravening the Act. Policies should be written in such a way that it not only regulates the conduct of the employees, but also that of the employer, therefore protecting the employer from contravening the Act.
Secondly, if the evidence the employer obtains in this way is illegally obtained, it may be inadmissible in the disciplinary hearing or the CCMA but 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;
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.
Employers can employ different means to obtain evidence. It can for example, track the amount of messages going in and out of the computer network, ascertaining where those e-mail messages are being sent to. Evidence from third parties may be obtained, for example if the employee sends inappropriate email to others. The employer can also confront the employee with evidence, which does not necessary includes the contents of the message, but with the number of messages or the addresses to which the messages have been sent. The employer is not opening the e-mail messages and reading their contents, however it may track the emails on its system.
To summarize, the employer is entitled to stipulate (and indeed should stipulate) in the employment contract that all electronic communications equipment is provided for business use only and that private use is prohibited (including telephones), further that interception of communications shall take place from time to time and that any breach of these requirements shall result in disciplinary action which may lead to dismissal
For more information contact Jan du toit firstname.lastname@example.org