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Monitoring Communications in the Workplace

The Regulation of Interception of Communication and Provision of Communication-Related Information Act, 70 of 2002 (RICA) has become more commonly associated with cell phone sim card registrations. It is a generally unknown fact that RICA deals extensively with, in addition to the above, communications in the workplace.

RICA regulates an employer’s right to intercept or monitor the communications of employees in the working environment. It is of paramount importance that the respective rights of the employer and the employees are balanced. The employer has a right to protect its proprietary interests while the employees have the right to protect their right to privacy.

In the recent unreported case of Smith and Partners in Sexual Health (Non-Profit) CCMA (WECT 13711-10) the CEO of a company accidentally gained access to one of her employee’s email accounts, mistakenly believing it to be the company’s account. In the emails, the employee complained about her job and her employer and informed others about the goings on at the company itself. The employee was dismissed and took her case to the CCMA where it was held that she was unfairly dismissed. The court in this case did not rely on RICA and instead placed more weight on who owned the Gmail account. The Court concluded that the CEO had no right to read the employees emails since it was her personal account (on the employer’s computer).

The Court should have taken into account the several exceptions contained in RICA in coming to its decision. An employer may rely upon these exceptions in order to justify any monitoring or interception of an employee’s communications. An interception, according to RICA, may be ‘authorised’ in various ways, including: if the employer is a party to the communication or if the monitored party has provided written consent.

In addition, RICA provides that the employer will be justified if he or she will be able to prove the communication was intercepted in the course of the carrying on of any business; if that communication relates to that business, or which otherwise takes place in the course of the carrying on of that business. Importantly, the interception must be effected by, or with the express or implied consent of the system controller, for the purposes of monitoring or keeping a record of indirect communications; in order to establish the existence of facts if the telecommunication system concerned is provided for use wholly or partly in connection with that business; and if the system controller has made all reasonable efforts to inform in advance a person who intends to use the telecommunication system concerned that indirect communications transmitted by means thereof may be intercepted.

Therefore, in order to prevent civil litigation by employees should the employer be found to be monitoring or intercepting their communications, employers must ensure that their employees are fully aware of any policies regarding interception or monitoring and these policies should be included and explained in detail in the employment contracts. Should an employer fail to comply with the provisions of RICA, it runs the risk of being convicted of a criminal offence, and could be forced to pay a fine not exceeding R2,000,000 or be imprisoned for a period not exceeding ten years.

If you need more information or legal advice on the subject, please contact Abrahams & Gross Attorneys for assistance.

t.  021 422 1323    |    e.   info@abgross.co.za

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