Employers Vs Employee Rights To Monitor Communications
There is a very fine line between what is acceptable in terms of communications at work, and what is not. Most employers will allow employees to use their work computers and internet for personal use for a small percentage of time during the work day. Activities such as: browsing the internet, using social media and even sending personal emails are generally allowed, provided they don’t consume too much time and that the employee is still focused on delivering their work commitments.
There are, however, some businesses who do not allow this at all and believe that every minute spent on work computers and at work, must be spent doing work-related activity and that anything over and above this must happen outside of work hours and off work property.
Both situations are within legal rights to conduct business in such a way. If the business stipulates that no personal activity may take place within working hours, then this is what the employee agrees to when signing their employment contract.
But what if the employer wants to monitor this to ensure that the employee is not breaking business protocol? Is the employer allowed to monitor the employee’s computer and communications to ensure that he or she is not breaking the rules of his or her contract?
Allowable Work Communications – Legally Speaking
The employee has a right to privacy, while the employer has a right to protect their interests. This is managed by RICA: The Regulation of Interception of Communication and Provision of Communicate-Related Information Act 70 of 2002.
RICA serves to monitor the privacy of the employee and employer in terms of what is fair and just.
Monitoring of personal email accounts and social media accounts is not acceptable. Even if the employee used the email account during work time, the employer has no right to obtain access to this account to see what was communicated. Where employees are using social media to publicise work events or activities that take place during work, the employer has the right to request these posts to be removed if they are public-facing content. If they are private and located within the employees social media accounts, the employer has no legal right to obtain access to this content, and also has no right to request it to be removed.
If the employee has brought the business into disrepute via public-facing content that is condemning the business in some way, they can be brought into a disciplinary hearing and action can be taken from there. However, if a business were to unlawfully gain access to personal content that the employee created, and then take disciplinary action against the employee, they could find themselves paying damages to the employee.
There are a few legal battles between employees and employers that have played out through the CCMA. Both sides are considered equally and a fair and just solution is met in all cases.
The instances in which an employer is within rights to monitor, intercept and take action based on content or communications created by the employee, are as follows:
- If the employer is a party to the communication
- If the monitored party has provided written consent – the employee must be aware that they gave consent
- Where the communication was in connection with business communications
These can be expanded on and both parties should be aware of these implications. There are no other instances where an employer has the right to intercept communications written by an employee.
Resources:
Information: https://www.schoemanlaw.co.za
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