The 21st century has brought with it a new and powerful form of communication through the Internet. But with it comes a quagmire of legal issues which anyone using the Internet faces on a daily basis. Included amongst these users are employers and their employees. Whereas with previous forms of communication (telephones and fax machines) one could monitor quite easily the nature of communications and the duration of these communications, the employer now faces the difficult and perhaps questionable task, of monitoring employees use of the Internet and e-mail.
It is trite law that the employer may take disciplinary action against any of its employees who, amongst others, conduct themselves in a manner which contravenes the codes of good practice of the employer. But in establishing whether or not the employee has indeed contravened the code of good practice, the employer must conduct certain investigations to ensure that a misconduct has occurred and that the actual culprit of that misconduct is identified. So, when we speak of an abuse of the Internet and/or e-mail facilities in the workplace, what does this investigation entail? Enter the quandary.
Celeste Allan of Celeste Allan Incorporated.
Note: Trite Law – when we speak of 'Trite Law', we mean that it has been tried and tested and has been accepted as a legal principle and is applied consistently by all courts
South African labour legislation
The South African labour legislation in the form of the Labour Relations Act 66 of 1995, as amended, sets out guidelines in Schedule 8 as to the procedures to be followed by the employer in dismissing employees. These guidelines have been interpreted and applied by such tribunals and Courts as the Commission for Conciliation, Mediation and Arbitration (CCMA), the old Industrial Court and the Labour Court to the extent that it is accepted and trite law that, in taking disciplinary action against an employee, the employer has to establish and prove:
i. that the company had a rule regulating the relevant conduct in the workplace;
ii. that this rule was reasonable;
iii. that the employee was aware of this rule, and
iv. that the employee contravened this rule.
There have been a number cases which have been referred, amongst others, to the CCMA regarding the dismissal of employees for the abuse of the Internet. The charges made against the employees have been along the lines of 'unauthorised use of company property for private purposes unrelated to work' and 'willful disobedience relating to gross abuse of company property and/or equipment'.
These cases have inevitably involved the fact that the employee has made excessive use of the Internet by surfing pornographic and 'undesirable' sites during working hours, as well as the excessive use of the e-mail facility in sending personal e-mails from work during working hours. Take, for example, the case of the employee who, in making use of the company telephone and Internet facility, cost the employer a princely sum of R10 000 in telephone calls, and caused no less than 400 hours being spent on the Internet surfing pornographic and other undesirable sites (personally and with other employees) on company time and at company expense.
Or the employee who spent no less than the equivalent of eight days surfing pornographic sites during company time and at company expense over a period of two months. Or the employee who worked for a commercial bank and, having access to the Internet and client's bank accounts, made electronic transfers of funds from client's accounts to his and his friends accounts. These cases are clear breaches on the part of the employees, in that they have cost the company time and money, and in the last case, constitute a criminal offence.
But what about those cases which involve the actions of employees who download material from pornographic sites, and who then forward this material by e-mail to friends, or employees who use the e-mail facility as their personal means of communication to friends and family worldwide or worse still, employees who use the Internet and e-mail facility as a means of sending hoax messages to the effect that South Africa has been implicated in the horrific terrorist act against the US.
The Interception and Monitoring Prohibition Act
The question which must be answered in these cases must be: Does the employer have a right to monitor and intercept employees use of the Internet and e-mail or does this constitute a breach of the employees right to privacy?
To answer this question, a number of factors must be considered, most significant of which is South African legislation which addresses these issues. We must look to the Constitution of the Republic of South Africa Act 200 of 1993 as well as to the Interception and Monitoring Prohibition Act of 1992 and consider how these laws apply to the workplace. This process of interpretation of our laws is one of the many functions of our courts and it is through cases in point that we draw precedents and guidelines as to how our courts (or other established tribunals) have interpreted these laws.
At this time, we are awaiting an award to be handed down by a senior advocate who has recently conducted a private arbitration in a matter concerning three employees who were dismissed from their workplace for allegedly forwarding by way of e-mail what was deemed by the employer to be 'pornographic material'. This award, it is hoped, will set down, if not precedent for future similar cases, at least certain guidelines for the employer in this situation.
However, this is, it is submitted, a particularly difficult area of the law as it encompasses the process of, amongst others, weighing up the right of an employee to privacy in his or her communications against the right of the employer to ensure that its good name and reputation are not harmed by employees sending 'undesirable' e-mails from the office, where the name of the company appears at the end of the e-mail.
This issue is still under considerable debate in countries such as the US where companies can be held liable for employees sending racist, sexist or offensive e-mails in that these offensive e-mails could be used to show that the employer created a hostile working environment. Worse still, the actions of employees could result in companies being held liable for illegal activities. Cases cited in this regard include:
* A federal scientist who was arrested for allegedly downloading more than 20 000 images of child pornography and then distributing these images.
* A company scientist who, whilst communicating within a chat group, defamed a competitor's product.
This area is new and requires a great deal of exploration, amended legislation and case law to set out legal principles which may apply in the future. But it is also an area which can never, by its nature, be defined in specific and limited terms. It is an area of the law which will always change with the times and with the merits of each case which may come before the CCMA or our labour courts.