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The Regulation of Interception of Communications and Provision of Communication-related Information Act, number 70 of 2002 (RICA) came into effect at the end of September 2005. This act places very tight restrictions on employers wishing to monitor telephonic, e-mail and other communications of employees at the workplace. This makes it very difficult for employers needing proactively to monitor and prevent misuse of email facilities or to investigate allegations or suspicion of email misconduct or other misconduct perpetrated electronically.
This heavy piece of legislation is not only restrictive it is also, in certain places, written in unclear terms. For example, section 6 appears to allow monitoring of employee communications if these communications have been made in the course of the carrying on of the employer’s business. However, there is no clarity as to what “in the course of the employer’s business” means. Does it mean that the subject of the e-mail must be business related or does it merely mean that the e-mail must have been sent during business hours and/or via the employer’s equipment/communication channels?
However, section 2 of RICA very clearly outlaws the interception of any communication in the course of its transmission. However, it is unclear as to what is meant by “in the course of its transmission”. Does this imply that an employer can wait until after the message has been transmitted and can then read it? This seems unlikely as the provisions of RICA are based on the employee’s constitutional right to privacy which would be made meaningless by this interpretation.
RICA appears to cover telephonic, e-mail and all other communications. The word intercept in section 2 of RICA means the “…acquisition of the contents” of the communication and includes access via “ listening to, viewing, examining or inspecting the communication.
The only section of RICA providing any hope for employers is section 5 that gives employers the right to intercept employee communications if one of the parties to the communication gives written consent thereto. However, employers will not find it easy to get such consent from employees.
It seems, however, that once an e-mail is ‘made public’ by the sender it cannot be seen to be private and cannot fall under the scope of RICA. In the case of Van Wyk vs Independent Newspapers Gauteng (Pty) Ltd (Contemporary Labour Law November 2005 Vol 15 no. 4 page 37) the employee had been dismissed for sending two e-mails; one to his boss and one to several other people in the company. These e-mails had been found to be malicious and derogatory towards the newspaper’s editor. Both the CCMA and the Labour Court declined to see the e-mails as private as, in part, they had been sent to people who, because they were the intended recipients, had the right to read them and to act on them.
Thus the privacy protections of RICA appear to apply mainly to cases where neither the sender nor the recipient wishes the employer to access the content of the communication. It is in such cases that the employer’s rights to protect its interests are severely curtailed.
It is most understandable that our lawmakers, in the spirit of the constitutional right to privacy must protect people from being spied upon in the oppressive manner of South Africa’s old regime. However, what of the employer’s right to protect itself from employees who break it s rules and endanger its interests? For example, how is an employer to protect itself from employees who:
- Send objectionable material to each other or to parties outside of the workplace?
- Use up band with that is needed for business purposes?
- Waste company time surfing the net or sending private e-mails?
- Expose the employer’s computer’s to viruses?
- Expose the employer to lawsuits by sending offending or unauthorised e-mails to employees or third parties?
- Incur expenses for employers by sitting for hours on the telephone calls to their friends?
Employers need to be able to monitor employee usage of their communications systems in order to prevent the problems that arise from such misconduct.
In the light of RICA’s rigid provisions the best strategy that employers can use with any safety is to get written permission from all employees to monitor their e-mail or other communications. Employers should, in addition, draw up clear and comprehensive policies with regard to prohibiting the abuse of communication systems and the employer’s rights to protect their interests.
The obtaining of employees’ permission and the design of such policies should be done in consultation with a labour law expert in order to ensure that the employer neither infringes any legislation nor leaves any loopholes in its own system.
To attend our free webinar on the ANTIDOTE AGAINST CORONA INDUCED BUSINESS DECLINE on 20 August 2020 go to https://www.sabpp.co.za/events/EventDetails.aspx?id=1409213&group= or contact [email protected] / 011 045 5400
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za
COVID-19 has brought unprecedented disruption and destruction to not only our lives but the life of our economy. For the month of May 2020, Stats SA reported that 25.8% of companies reported laying off staff for the short term. Even worse, 80.2% of companies reported that up to 20% of their employees have been retrenched.
Dealing with disability claims daily, from a Momentum Corporate perspective, around 25% of employers have asked for retirement fund contribution relief. Of those employers who requested relief, just over 60% have put their staff on unpaid leave and 5% have reduced salaries.
These stats may appear to only have a financial impact, but we must always remember that behind these statistics lie people, employees and leaders who are currently being put through the wringer. In times like these, the public concern mainly centres on the impact this has on the employees, but what about the employers? What kind of the toll is this taking on line-managers and even business owners?
The far-reaching consequences of this pandemic may be hard to quantify at this early stage, but here are some of the more immediate impacts of COVID-19 on employers:
The Basic Conditions of Employment Act allows employees to take sick leave, and if they don’t have a sick leave balance, then they are entitled to take unpaid leave until recovered. Where an employee exceeds their sick leave entitlement, the balance of the employee’s leave will be unpaid unless agreed to the contrary, which affects their income or ability to earn an income. Therefore employees’ may be reluctant to disclose their COVID-19 risk status which results in a moral dilemma for employees.
Now there is also the added stigma around COVID-19 where many employees are too scared to disclose their risk status as they are afraid of the impact this will have on the entire group of co-workers who will have to self-isolate and may be unable to earn an income if they don’t have a sick leave balance. The moral dilemma for employers is to balance the business’ operational needs, for example client service, with the safety and health of their employees. How do employers deal with this unanticipated risk?
The downside of digital relationships
All relationships have now been digitised as everything happens online. Most researchers would agree that most communication is considered non-verbal so not being able to see the facial expressions makes the building of true relationships and understanding of intent difficult.
Can you really tell if your team is doing well if everyone has switched off their cameras to save data costs? We all know that communication on digital platforms is subject to the tone, so these restrictions and lost in translation moments make it difficult for managers to accurately gauge the health of their teams.
The ebb and flow of productivity
In these strange times, some people become over productive while others struggle with motivation. Even though working from home intended to maintain good output and efficiency during COVID-19, it could generate a worldwide productivity slump and threaten economic growth for many years if not keenly managed by every leader and line manager in every organisation.
Stanford economist Nicholas Bloom has done a great deal of research to show benefits on productivity when working from home. However, he points out that COVID-19 has provided different circumstances and cannot be compared to what working from home used to mean. Now you have to work alongside your children, or for those singles that are isolated, completely alone, and with the added stress of a global crisis.
Leave makes employers restless
Many employees have been putting off taking leave due to travel restrictions and feel it would be a waste of accumulated leave. According to a May 2020 survey by Willis Towers Watson, one third of South African businesses have changed their company leave policies during COVID-19 with a further 25% on the cusp of doing so.
Companies are really worried about the build-up of leave days and the financial implication this will have when they possibly have to pay these in cash due to resignations or retrenchments.
Another challenge is the operational risk of employees all wanting to take leave at the same time once the crisis has eased and the economy starts to recover. This will cause massive disruptions to productivity.
On the other hand, the risk of employees not taking leave and getting burnt out increases the risk of mental health related disability claims. Momentum Corporate reports that on average 9% of all disability claims are as a result of mental health claims and we anticipate that this will increase as the mental health fallout from the pandemic continues.
Who supports the supporter?
Line managers and leaders need to support employees and be aware of the challenges they face such as isolation, distractions at home, concerns about family and friends, anxiety over workload and working remotely, and even the death of a loved one.
COVID-19 is no longer a Facebook post talking about some faraway land with a faraway crisis. It is now affecting our own families and friends. Line managers and business leaders are expected to support their teams with work-life balance all while dealing with the very same issues in their own lives.
Stress on leadership teams
Everybody is facing financial stress, especially business owners and leaders. Loss of business with no turnover from non-essential businesses where they literally could not operate to a necessary degree. With no or low turnover, you can’t pay your employees or your suppliers which, as a smaller business, could mean that you must release your staff without retrenchment packages.
IT has become a soft target
The sudden shift in work environment has put a big strain on IT infrastructure requirements. Companies are seeing a spike in cyber-attacks with a growing need for more secure networks. While the world is focusing on the health and economic threats posed by COVID-19, cyber criminals are finding opportunities to capitalise on this crisis. Line managers must take proactive steps in advising employees to be more vigilant and apply caution as they work from home.
Impact on decision making
Leaders and teams must recognise their susceptibility to decision fatigue as they are facing so many organisational challenges. How do you keep the business afloat? Where do you cut back and where do you expand? What is your ecommerce strategy? This can lead to decision fatigue, having to have a grip on the current situation and the impact your decisions will have in an uncertain future.
Decision fatigue refers to the idea that your willpower or ability to make good choices deteriorates in quality after an extended period of decision making. Under prolonged stress and fatigue, functions such as judgement, strategic thinking and even rationality can deteriorate and cloud complex decisions. As a leader who is forced to make hard decisions with potentially severe consequences throughout the day, you might experience growing difficulty in accurately assessing the risks associated with different causes of actions.
At the end of the day…
It is very clear that the burdens on leaders are significant. An increase in disability from mental health related claims on a management level seems inevitable. As does an increase in non-communicable or lifestyle related diseases such as cancer, hypertension and diabetes as increased levels of stress have been known to exacerbate these afflications not to mention the fact that people are remaining socially distant and avoiding going to the doctor. While the economic crunch in a COVID-19 world is going to affect many employees, let us not forget about the stress that this puts on line-managers and business owners.
By Elna Van Wyk, Head of Group Disability Management and Underwriting at Momentum Corporate
Proof is evidence soundly supported by other relevant evidence. Regardless of the seriousness of an employee’s misconduct his/her dismissal will be found to be unfair if the employer is unable to provide at arbitration sound and relevant evidence that the employee was guilty of the offence for which he/she was dismissed.
Proof of guilt is a factual and skilful exercise requiring:
- Testimony that is not contradictory
- Evidence that has been tested and cross-examined by the accused employee and, despite such a test, still holds water
- Documents that are validated and that clearly show up the employee’s misconduct
- Evidence that is corroborated by other evidence
- Testimony from credible witnesses
- Evidence derived from thorough and honest investigation.
Thus, proving one’s case depends on the bringing of evidence that will persuade the presiding officer that one’s allegations or claims are true and genuine.
Parties should not delude themselves that the presiding officer of a disciplinary hearing or a CCMA arbitrator will believe their evidence merely because the witness testifying is a powerful, well known or highly regarded person or comes from a prestigious organisation.
That is, the bringing of persuasive evidence does not depend on the status of the person bringing it but rather depends on the skill of the investigator and prosecutor in gathering, preparing and presenting convincing, relevant and material evidence in a legal and effective manner. In labour law winning is not about power it is about legal, strategic and investigatory expertise.
However, it is not enough to bring strongly supported or incontrovertible evidence. Parties need to further ensure that the evidence they bring is relevant to the case.
For example, if an employer wishes to convince an arbitrator that an employee stole petty cash it is pointless for the employer to bring solid proof that the employee’s work performance is poor because this is irrelevant.
At the same time it is most infuriating for parties who have gone to the trouble of collecting genuine, solid and relevant evidence only to see the arbitrator ignore this evidence. Fortunately the parties do have recourse to the Labour Court if a CCMA arbitrator disallows or ignores relevant and legally permissible evidence in making his/her award.
For example, in the case of Jafta vs CCMA & others (2007, 3 BLLR 209) the employee was a goods returned clerk dismissed for failing to follow company stock handling procedures. The arbitrator found the dismissal to be fair but the employee took the arbitrator on review to the Labour Court. The Court found that the arbitrator’s decision was defective largely because he had ignored relevant evidence relating to the stock losses and to the effect that the employee did not have a full understanding of the operation of the employer’s stock system. The Court ordered the employer to reinstate the employee with full retrospective effect.
However, it is not always easy to decide if evidence is relevant or not. This difficulty applies to chairpersons of disciplinary hearings and to CCMA arbitrators. There is more than one reason for this difficulty:
- The presiding officer may not be properly trained to be able to understand what is and is not relevant.
- Lack of clarity of the evidence itself. For example, the witness giving the evidence may waffle so badly that it is difficult for even a trained presiding officer to recognise the relevance of the testimony.
- The evidence may only be indirectly relevant to the case. For example, the employee may have been dismissed for poor performance of his/her work. However, the employee might tell the arbitrator that the employer has been victimising him/her for weeks on end. While this seems, on the surface, to be irrelevant to a charge of poor performance it might not be irrelevant. That is, the employee may be able to show that it was the victimisation that caused the poor performance or that the poor performance allegations are false and are part of the victimisation campaign.
It is therefore crucial that parties ensure that they bring their evidence in such a comprehensive, clear and persuasive manner that it cannot be ignored by a fair arbitrator or disciplinary hearing chairperson.
To attend our free webinar on the ANTIDOTE AGAINST CORONA INDUCED BUSINESS DECLINE on 20 August 2020 go to https://www.sabpp.co.za/events/EventDetails.aspx?id=1409213&group= or contact [email protected] / 011 045 5400
South Africa’s Constitution gives every person the right to privacy and requires that legislation be promulgated to implement this right. As a result the Protection of Personal Information Act of 2013 (POPI) was drawn up but did not come into effect for seven years after its enactment.
The primary sections of POPI became law on 1 July 2020. Although POPI is not a labour law per se it affects employers very substantially because employers process a great deal information of employees and of other persons associated with the employer.
The legislators brought this legislation into effect in July 2020 in order to give employers and other persons time to make their information processing systems legally compliant. The deadline for compliance is 1 July 2021.
This ‘grace’ period ending on 1 July 2021 is not a long one and the time will speed past. Most employers are focussing on the survival of their businesses at present but need to devote time and attention to POPI compliance.
The reason that employers must take time out for POPI is because non-compliance can result in imprisonment of up to 10 years and a fine of up to R10 million.
The core purpose of POPI is to protect the rights of natural and juristic persons to the privacy of their personal information.
For the purposes of this act “personal information” is information relating to a living natural person and an existing juristic person that relates to the person’s personal characteristics, views, identity, education, medical, financial, criminal, employment history, ID number, address, location phone number, online identifier, biometrics, private correspondence and opinions about the person. It even applies to his/her/its name if the recording or revealing of his/her/its name would reveal his/her/its personal information.
POPI effectively designates every organisation as a “Responsible Person” and holds everyone who determines the purpose or means of processing personal information responsible for the legal implementation thereof.
“Processing of information” covers a multitude of sins because it means the collection, receipt, recording, storage, updating, use, accessing, dissemination, making available, merging, restriction and destruction of information.
While the processing of the information available to an employer is still legal in many cases POPI places extremely heavy restrictions on such processing. As the phrase “processing of information” applies to both automated and non-automated record systems and covers everything from collecting, retaining and provision of information, every aspect of the employer’s entire information system, policy, procedure and practice are subject to POPI.
In summary, the primary conditions for the lawful processing of information include:
- The entity processing the information must hold itself accountable for legal compliance and must have an information officer
- The processing must itself be lawful
- The information must be adequate, relevant and not excessive
- If the information relates to a child consent must have been given.
- The processing must be Necessary and for a specified purpose
- The information must be accurate, complete and not misleading
- The records must not be kept longer than necessary
- The information must be subject to the requirements of the Promotion of Access to Information (PAI) Act
- The records must be kept securely so that it is not vulnerable to access by unauthorized persons.
In addition, the sending of unsolicited marketing communications to persons is heavily restricted.
In a nutshell, every employer needs to collect, keep and share copious personal records of many different kinds. POPI prohibits the keeping of records of certain kinds and very heavily restricts the processing of permitted information.
Currently, the record systems, policies, procedures and practices of most entities are not compliant with POPI and many employers do not even know the extent to which they are not compliant.
As the audit will take a lot of time and filling the compliance gaps will take even longer employers are advised to start with their POPI compliance audits right away.
To buy our e-book WALKING THE NEW LABOUR LAW TIGHTROPE please contact Ivan via [email protected] or 011-888-7944.