The use of social media for marketing purposes, customer liaison or operational planning, has boomed throughout the last few years. It has become a handy tool due to its multiple uses, including storage of information and recording of video or audio for later reference. Just as employers have become inclined to utilise this versatile tool to further a business’ economic potential, it may happen that employees turn to social media for more sinister reasons. A confidential conversation can be recorded in as much as a click of a button…and distributed just as easily.
The Bill of Rights entrenches a person’s right to privacy. Section 35(5) further states that evidence obtained in a manner that violates any of the fundamental rights encapsulated therein must be excluded as evidence where this would be unfair or detrimental to the administration of justice. It should, however, also be noted that such evidence may be admissible where the interests of justice necessitate.
Section 4 of the Regulation of interception of Communication-Related information act of 2002, better known as the RICA Act, provides that a person may intercept or record a conversation that they are party to. Different provisions would, however, find application where the intercepting party is a law enforcement officer, or where a person records such conversation with the intentions of committing an offence.
A very interesting and noteworthy matter regarding the (mis)use of technology for the purposes of interception to obtain evidence, was that of Harvey v Niland and others. In this matter, the respondent’s Facebook account was hacked – clearly an infringement of the right to privacy. Ironically, in this matter, the court ruled the evidence to be admissible regardless.
It is common practice that employers do at times digitally record disciplinary hearings or retrenchment consultations for the purpose of proving procedural fairness should employees wish to challenge the dismissal at a later stage. Employers often install CCTV cameras in workplaces for the purposes of risk management.
A noteworthy case is the matter of Protea Technology and Wainer. In this matter, the applicant argued that telephone recordings submitted by the employer in a disciplinary inquiry were inadmissible as evidence. However, the court confirmed that due to the fact that the recordings were produced by a communication system utilised for the purposes of conducting conversations pertaining to the employer’s operational and economic affairs, the employee had no legitimate expectation to privacy in this regard. The court also confirmed that evidence would not necessarily be inadmissible if obtained in an illegal manner. Other noteworthy facts contributing to the court’s decision was that:
- The calls preceding the dismissal were made during working hours for which the applicant had to account;
- The calls were made using the facilities of the employer, who is entitled to monitor the expenditure and use thereof;
- The employee was in a senior position, and under the circumstances, the employer’s right to monitor its resources outweighed the employee’s right to privacy.
Employers should take note that employees may catch them off guard in an arbitration process, presenting recordings between themselves and their former employer as evidence. These may be recordings that the respondent may be totally unaware of. Whether or not prior consent was given for such recording may be of no relevance and may lead to far-reaching consequences.
The same principle applies where an employee has been charged for misconducting himself, and evidence is submitted that may have been obtained in a controversial manner. It is, however, still strongly advisable to implement policies and procedures protecting an employer’s rights to intercept and monitor the workplace.
If any information or guidance is required regarding the admissibility of evidence, please do not hesitate to contact your nearest CEO office.
Article by: Janeske Greeff
Dispute Resolution Official – Cape Town