All employees have a right to privacy, but does it end there?  In the recent Labour Court decision of NUMSA and Another v Rafe N. O. and Others (JR1022/12) [2016] ZALCHJB 512, the question of whether an employer had the right to examine an employee’s cellphone, was permissible, secondly the employees’ refusal to have his or her cellphone examined constituted an offence that warranted dismissal. Consolidated Employers Organisation frequently receives questions pertaining to this issue and whether there is any risk that the employer may face at the CCMA or Bargaining Council. Employers now have more guidance on this sensitive issue that has been clarified by the Labour Court in the above-mentioned case.

 

The facts of the case are that the employee took photographs of the company’s production line, shift machines and letter trays. Upon discovery, the employer requested that the employee delete the photographs pertaining to the company’s confidential business operations. The employer asked the employee to confirm that the photographs were deleted, as he felt it was crucial to keep business operations confidential to prevent any conflict of interest. When the employer asked the applicant to confirm deletion of the photographs, the employee refused to adhere to the instruction. The employer at that point requested the applicant to hand over his phone to check if the photographs had been deleted.  Was the employer allowed to make such requests and was this in violation of the applicant’s right to privacy?

 

The employee then once again refused to hand over the phone and argued that this violates his right to privacy as he had personal data on his phone. The employer stated that they work in a very competitive environment. Thus all business production needed to be kept private. After this, the applicant was placed in a hearing for failure to delete the photographs and for refusing to hand over his phone for inspection, he was subsequently dismissed.

 

The applicant challenged his dismissal at the CCMA in which the Commissioner decided that the employers’ request to delete the photographs and to hand over the applicant’s phone was reasonable. The Commissioner ruled that the charge against the applicant warranted a dismissal, therefore making the dismissal substantively and procedurally fair.

 

The employee then took the arbitration award on review to the Labour Court. The Labour Court held that although the employee has a right to privacy, that does not necessarily give him a right to use his personal phone as a camera to capture confidential company information. The review was dismissed on the basis that it was not unreasonable to protect company production and confidential data and that the conduct attempted to break the trust relationship between the employer and the employee.

 

Should an employer face a similar issue at the CCMA, it is vital to understand that employees have a right to privacy, but there are certain limitations to that privacy. An employer has every right to safeguard their assets and keep company data confidential.

 

Article by: Niksha Nilchand

Legal Assistant – Durban