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CAN EMPLOYEES BE BANNED FROM RECORDING COMMUNICATIONS IN THE WORKPLACE?

The courts have confirmed that employers do have the right to discipline employees for unlawfully recording workplace activities, where there is a business interest for doing so – it was on this basis that the employee’s dismissal was upheld in NUMSA and Another v Rafee N.O. and Others [2017] 2 BLLR 146 (LC).

In the above matter the applicant employee was dismissed after being found guilty of failing to delete photographs of the respondent company’s production line from his cell phone and refusing to hand over the phone to enable management to ensure that the pictures were deleted.

The employee had refused to hand the phone over because he regarded it as his private property and because he believed he was entitled to take pictures wherever he pleased. However, during the arbitration the employee denied having taken pictures of the production line. The respondent Arbitrator held that the instruction to hand over the phone was reasonable in the circumstances and upheld the dismissal.

The applicant contended on review that the Arbitrator had failed to consider the fact that the phone contained private information of a confidential nature and that the employer intended violating the employee’s constitutional rights to privacy and to lawful possession of his property.

The Court rejected the contention that the employee’s right to property had been infringed because there was no suggestion that the employer intended to confiscate his phone.

As to the right to privacy, the Court noted that no right is absolute.

n the employment context, employees’ right to privacy must be balanced against their employer’s right to protect its business interests.

The employee had taken photos of the employer’s production line and had failed to explain why he did so because he had chosen to deny taking the photos. His initial “defence” that he was entitled to take photos in the workplace might initially have had some substance, but it was not pursued during the arbitration. Taking photos of a production line is akin to copying plans of a company’s production layout and putting them in a briefcase. The other contents might be private and confidential, but the employee could hardly maintain that his right to privacy could justify retaining the employer’s confidential information along with them. The employee’s conduct had seriously breached the trust relationship.

To understand the position on the recording of communications in South Africa, the starting point is Regulation of Interception of Communications and Communication Related Information Act 70 of 2002 (RICA).

RICA, while broadly seeking to prohibit the recording of any conversation in the absence of the consent of the parties involved, nonetheless establishes a ‘one party consent’ rule. In other words, if the party – including an employee who records the conversation is themselves a party to the conversation, then the recording is not unlawful.

In terms of section 4(1) of RICA, 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 offense.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

LEXISNEXIS, LABOUR LAW THROUGH THE CASES –  05 March 2019.

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