The issue of employers having unrestricted access to employee e-mail has received much media attention during the last month and lawyers seem to disagree on the ‘need for written consent’ requirement. Two prominent Cape Town law firms have recently stated publicly that employers do NOT need written consent to throw employee privacy out of the window. We agree BUT ... if employers wish to intercept and read employee e-mail without their consent they can only intercept such an e-mail while it travels across the Internet.
The reason for this is found in section 6 of the Regulation of Interception of Communications Act 70 of 2002:
6.(1) Any person may, in the course of the carrying on of any business, intercept any indirect communication -
(a) by means of which a transaction is entered into in the course of that business;
(b) which otherwise relates to that business; or
(c) which otherwise takes place in the course of the carrying on of that business, in the course of its transmission over a telecommunication system.
Very few businesses have access to the expensive technology required to intercept communications as it travels over the Internet. Written consent by employees remains the best, low-risk solution!
Our view is that the debate centres on the interpretation of two sections (5 and 6) of the new Regulation of Interception of Communications Act. In terms of Section 5, any person, including an employer, may intercept a communication if one of the parties to the communication has given his or her prior written consent. However, in terms of section 6(1), any person may, in the course of carrying on of any business, intercept any indirect communications (including e-mail, website visits and SMS messages). However, employers will be ill advised if they only rely on section 6 (1) to assist them in this regard, as this section relates only to the interception of a communication in the course of its transmission over a telecommunication system. This implies that employers may only intercept communications without written consent while it is in the process of travelling over the Internet or a corporate intranet.
Labour Relations Act
It would also be relevant to pay some attention to the Labour Relations Act here. The Act states that when an employer wants to dismiss an employee it has to prove four things:
* That there was a rule;
* That the rule was reasonable;
* That it has been brought to the attention of the employee; and
* That the rule was broken.
If the employer does not have written consent it would be very difficult to prove that it has been brought to the attention of the employee.
What then would be the best solution?
The solution would be for the employer to acquire a well-drafted communications policy guidelining the rules of communication within the business. Aspects of this policy would include acceptable e-mail and Internet use, consent by the employee to have his communications intercepted and monitored, necessary action that might be taken by the employer in the event of such policy being breached, etc.
Employers would also be advised to attach such policy to their employment contracts as an annexure or alternatively make some form of reference to the specific policies being enforced by the employer within the contract.
Although some reports have earlier this month stated that huge fines will be imposed on non-compliers, the fact is that no regulation with regard to failure in complying with the publishing of the said manual was published and no specific penalties are mentioned.
This, however, does not imply that such non-compliance is not unlawful and the Minister of Justice and Constitutional Development has stated that failure to publish a manual timeously may attract legal action from the South African Human Rights Commission. Non-compliance may also lead to blacklisting and civil liability.
The 28th of February has come and gone! Many companies, closed corporations, partnerships and individuals running a business will ask themselves, what now? They have neither created any Promotion of Access to Information Act manual as required by section 51 of the said act and nor have they lodged it with the South African Human Rights Commission and Government Gazette.
The answer is simple. Do not delay further and start with the process. The Commission has stated that such enterprises should keep on lodging these manuals, even though the deadline has expired, after which the Commission will evaluate every submission to decide whether appropriate action will still be taken. It is our advice to submit an explanation for late submission when lodging your manual, and at the same time submitting it as a matter of urgency.
Many have asked what the reason behind all of this is and why? It almost suggested some feeling amongst employers that they must display their salaries to every employee and make such information readily available to all and everyone that wanted to see. That is definitely not the case and businesses can rest assured that the whole purpose of this act is to give transparency to businesses and extend the function of section 32 of the Constitution which enforces the right to access of information, and not to expose confidential information in the open.
The Act makes provision for an application process that applies to everyone who requests access to such information as listed in the manual. Businesses must only list information that may be made available if so requested. Remember, 'however', that some information is compulsory like the name of directors, company registrations, etc. The application would then go through a process of elimination once, say for instance the employee can provide sufficient proof that he/she needs such information to protect certain of his/her rights, before certain access to information would be given.
A fast way of drafting such a manual would be to visit www.legalbuilder.co.za
. If you have read this article and still find yourself non-compliant, then the time for taking the necessary steps is NOW.