With the promulgation of the Constitution of the Republic of South Africa, 1996, and in particular, the Bill of Rights, it would often appear that criminals in this country enjoy more rights than their victims. This perception seems to be rife amongst employers who, in dismissing employees for theft of company property of whatever nature, are, in many instances, ordered by the Commission for Conciliation, Mediation and Arbitration to reinstate employees who may indeed have stolen company property. The question that arises in this instance is whether or not an employer is entitled to take, implement and/or enforce those security measures it deems fit to protect and recover stolen company property. These measures may include measures implemented to prevent the theft of company property as well as those measures used in investigating the theft of company property.
The types of measures companies are looking to implement in an effort to prevent the theft of company property include video surveillance cameras, audio equipment, security check points at which body and bag searches are carried out and the monitoring and interception of employee communications. In an attempt to facilitate the investigation of the theft of company property, companies seek to make use of polygraph testing and even entrapment. Whether these measures impinge upon the employee's constitutional rights and whether they are permissible within the context of the employment relationship is the theme of this article.
Having addressed the aspect of monitoring and intercepting e-mails and Internet use on the part of the employees in the November issue of e-Secure, I shall rather place emphasis on the 'legalities' of the use of video and audio surveillance equipment in the workplace, body and bag searches, the process of entrapment and the use of polygraph testing.
Entrapment and surveillance equipment
As a general rule, to which there are of course exceptions, evidence of criminal activity obtained against a person through means of entrapment, carries certain restrictions in our criminal courts. However, that same evidence may be used by an employer and is admissible in the Commission for Conciliation, Mediation and Arbitration (CCMA) to prove that the dismissal of an employee for criminal activity in the workplace was fair.
In one matter which came before the CCMA, a company called upon the services of private investigators to ascertain the activity of some of its employees who were suspected of stealing and selling company property. A trap was set for these employees in meeting with the PIs, who were obviously acting undercover, and video footage and audio footage was captured of the 'deal' as it went down. In capturing this footage, the camera and audio equipment were concealed in the 'moonbag' of the PI in question, who thereafter presented to the company the video and audio footage, together with his written report. On this evidence, the employees in question were dismissed.
At the CCMA hearing, the employees' representative objected to this footage and report being used, but the commissioner was prepared to allow the evidence of the report of the PI for purposes of identifying the employees concerned. As it happened, the company's case was not completely reliant upon the report of the PI. The commissioner was therefore not presented with the video and audio recordings. However, the commissioner did see fit to comment that, in the event of the company relying on this evidence, he would have allowed its admissibility provided it was presented not as hearsay, but supported by the relevant PI and his verbal evidence.
In another case, an employee was dismissed on grounds of false claims of ill-health which, he maintained, resulted in his incapacity for the job for which he had been employed. He insisted that he had to be moved into a position which required less strenuous work on his part. The company suspected that these claims were false, and in an effort to investigate the matter, had the employee followed whilst he was allegedly on sick leave, and took a video recording of this sales employee assisting one of his friends to move heavy items. Two such recordings were taken of this employee, and based upon this recording, the company terminated the services of the employee. In considering the recording, the commissioner made reference to the fact that even the CCMA requires that such evidence be presented to the CCMA in accordance with the guidelines for admitting such evidence, and that the person seeking to rely and use this evidence must be able to show that:
* The recording is an original recording.
* No tampering has taken place in respect of that recording.
* The evidence must relate to the event.
* The recording must be identified as a true recording.
* The recording must be accurate and trustworthy.
On the other hand, the polygraph test does not enjoy such carte blanche, even in labour-related matters. It would seem that this method is frequently adopted by employers in a bid to 'identify' culprits involved in theft rings, where the employer has sufficient evidence to show that the theft is being committed internally, but insufficient evidence to identify the guilty party or parties.
Irrespective of the level of experience or the qualifications of the appointed polygraphist, the guidelines set down by the CCMA and supported by the Labour Court as regards polygraph test results, are quite simply that, evidence arising out of polygraph tests, which cannot be substantiated by some other form of evidence, physical or otherwise, is not sufficient to satisfy the CCMA or the Labour Court that the dismissed employee is indeed the guilty party.
The reason for this, says the CCMA, is based upon the inherent unreliability of this evidence and the fact that this evidence is insufficient to discharge the onus of the employer in terms of section 192 of the Labour Relations Act, 66 of 1995, as amended. This onus relates to the requirement on the part of the employer to show that the dismissal was fair.
Section 14 of the Constitution reads:
"Everyone has the right to privacy, which includes the right not to have -
(a) their person or home searched
(b) their property searched
(c) their possessions seized; or
(d) the privacy of their communications infringed."
Given this provision, together with the Interception and Monitoring Prohibitions Act of 1992, it is assumed by employers that searches (and indeed surveillance equipment) are not permissible. However, when dealing in the labour field, the approach that has been adopted in interpreting the application of this right to privacy is such as to weigh up the rights of the employer to protect its property, particularly in those industries which typically suffer from extensive stock losses through pilferage and theft, as opposed to the right of the individual to privacy.
Of course, there are certain limitations within which the employer may make use of this measure - the employer does not enjoy carte blanche. So, in the case of searches, the view which has been adopted is such that the individual's right to privacy is outweighed by the prejudice suffered by an employer where pilferage and theft are rife. In such instances, body and bag searches are permissible provided that it is advisable that these searches be carried out by persons of the same gender as the persons being searched.
The guidelines recommended in carrying out these searches for purposes of ensuring that employers do not find themselves facing damages suits, are as follows:
* It is advisable that the company implements a policy such that staff acknowledge the necessity for such searches to be conducted.
* Searches should be conducted in private areas and not in public view.
* Persons conducting the searches should be the same gender as the person being searched.
On a more amusing (or perhaps concerning note), a referred labour dispute involved a case where an employee had, at the time of being subjected to disciplinary action, and without the knowledge or consent of his employer, tapped his employer's telephone and recorded a conversation between his employer and the employer's attorney, in which the attorney had assisted the employer in preparing the notice of hearing, and had then also acted as the chairman at the hearing. On the basis that the chairman of the hearing had also assisted in preparing the company's case against the employee, the employee won his case and the audio tape was admitted for purposes of evidence!
Source: Celeste Allan, Celeste Allan Incorporated.