Vices or Devices: Employee Monitoring in the Workplace
Jurisdiction | South Africa |
Published date | 16 August 2019 |
Date | 16 August 2019 |
Author | Adriette Dekker |
Pages | 622-637 |
Citation | (2004) 16 SA Merc LJ 622 |
Vices or Devices: Employee Monitoring
in the Workplace
ADRIETTE DEKKER*
University of South Africa
1 Introduction
In order to be able fairly to dismiss an employee, an employer must have
substantive evidence against the employee. Employers often resort to modern
technology (such as telephone tapping, video recordings, and lie-detector
tests) to obtain evidence to substantiate a fair dismissal. The use of devices,
undercover agents, and modern technology is problematic, as, on the one hand,
an employee has a fundamental right to privacy,1 and, on the other hand, the
employer has a legitimate right to protect his or her business interests.
The two main issues relevant to the use of surveillance or monitoring
equipment are (a) whether the evidence so obtained should be admissible, and
(b) whether the infringement of the right of privacy should be allowed.
2 The Admissibility of Evidence
At common law, evidence is allowed if it is relevant, regardless of the manner
in which it is obtained, provided that self-incriminating evidence and evidence
obtained under duress will not be admitted.2
The majority of cases suggest that evidence obtained by means of monitoring
equipment or interception, if unauthorized or improperly obtained, will impact
on the admissibility of such evidence. But in Assegai v Autopax3 the court held
that the rule against the admissibility of unconstitutionally obtained evidence
should not be applied as strongly in civil as in criminal cases.
The constitutionally protected right to privacy and the Regulation of
Interception of Communications and Provision of Communication-Related
Information Act4 will have an impact on the common-law position in so far as
the admissibility and obtaining of evidence is concerned.
Before the RICPCIA entered into force, the Interception and Monitoring
Prohibition Act5 was the most important statutory provision regarding
surveillance. This Act prohibited the interception of confi dential information,
but did not apply in the private sphere such as the workplace.6
622
* BLC LLB (Pret) LLM (Unisa). Senior lecturer in Labour Law in the Department of Mercantile
Law, University of South Africa, Pretoria.
1 Section 14(d) of the Constitution of the Republic of South Africa Act 108 of 1996 states that
everyone has the right to privacy. This includes the right not to have their person or home searched, their
property searched, their possessions seized, or the privacy of their communications infringed.
2 Goosen v Caroline’s Frozen Yoghurt Parlour (Pty) Ltd & another (1995) 16 ILJ 396 (IC) at 400C.
3 SATAWU obo Assegai/Autopax [2002] 2 BALR 171 (AMSSA) at 171G.
4 Act 70 of 2002 (‘RICPCIA’), s 2.
5 Act 127 of 1992 (‘IMPA’).
6 Moonsamy v The Mailhouse (1999) 20 ILJ 464 (CCMA) at 467–468.
(2004) 16 SA Merc LJ 622
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EMPLOYEE MONITORING IN THE WORKPLACE 623
The RICPCIA prohibits the intentional interception or authorization
of an interception of any communication in the course of its occurrence or
transmission. But there are certain exceptions, some of which are very important
in the context of the employment relationship. The Act allows any person,
other than a law enforcement offi cer, to intercept certain communications, if
that person is a party to the communication, unless it is intercepted for the
purposes of committing an offence.7 The Act also allows any person, other than
a law enforcement offi cer, to intercept communications if one of the parties has
given prior consent in writing to such interception, unless it is intercepted for
the purposes of committing an offence.8
Also of relevance in the context of the employment relationship is section 6:
it allows any person to intercept any indirect communication9 by means of
which a transaction is entered into in the course of that business,10 or which
relates to the business,11 or which otherwise takes place in the course of
carrying on of that business.12 These interceptions may be done only with
the express or implied consent of the system controller and for purposes of,
amongst other things, monitoring or keeping record of indirect communications
for the purposes of investigating or detecting the unauthorized use of that
telecommunications system.13 The Act compels the system controller to make
all reasonable efforts to inform in advance a person who intends to use the
telecommunication system.14
So an employer is entitled to intercept data and text messages of employees,
which include e-mail submitted and received in the course of and scope of the
business.15 The wording of the Act is rather vague and seems to relate only
to communications entered into for business purposes. It does not seem to
authorize an employer to intercept communications outside the normal scope
of the business — private e-mail. It is also unclear if e-mail may be blocked or
intercepted at server level.16
7 Section 4(1) of the RICPCIA.
8 Section 5(1) of the RICPCIA.
9 An indirect communication is defi ned as a transfer of information. It includes a message or any part
of a message, whether in the form of speech, music, or other sounds, data, text, visual images, signals,
or radio frequencies transmitted by means of a postal service or telecommunication system. A direct
communication is an oral communication other than an indirect communication between two or more
people that occurs in the immediate presence of all the people participating in that communication, or
the utterances by a person who participates in an indirect communication, if the utterances are audible to
another person who, at the time of the indirect communication, is in the immediate presence of the person
participating in it.
10 Section 6(1)(a) of the RICPCIA.
11 Section 6(1)(b) of the RICPCIA.
12 Section 6(1)(c) of the RICPCIA.
13 Section 6(2)(b)(i)(bb) of the RICPCIA.
14 Section 6(2)(d) of the RICPCIA.
15 See also J Crawford ‘Why Your Boss Is Allowed to Read Your e-Mail’ 10 March 2003 Cape Times,
accessible at <www.iol.co.za>.
16 25 July 2003 Legalbrief News Diary, accessible at <www.legalbrief.co.za>.
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