People are obsessed with computers, phones and social media. When an employee goes rogue, invariably there is a wealth of important information sitting on their computers. The burning question is, can an employer intercept and monitor data sitting on a company computer or phone?

With the worldwide increase in privacy protection, the question is complex and unfortunately, the answer is not always black or white. Employers must remember that the debate often plays itself out in the CCMA, where a whole host of other fairness based considerations may be at play.

The Regulation of Interception of Communication and Provision of Communication-Related Information Act, 70 of 2002 (“RICA”) makes it an offence to intercept communications. The risks are high, with the potential consequences being a R2 million fine or potentially up to 10 years imprisonment. In addition, employees have a constitutional right to privacy.

Apart from the fact that it is an offence, employers also face the potentially frustrating prospect of having clear evidence that is inadmissible. Of course, it is arguable that the interception by an employer occurs in the course of the carrying on of any business, which is one of the recognised exceptions to the rule that the interception of information is unlawful. In Smith and Partners in Sexual Health (Non-Profit) CCMA (WECT 13711-10), the Court found that emails accessed on a company computer, but from a private Gmail account were inadmissible.

Fortunately, there is a straightforward solution: implement a clear Computer Systems Policy that provides you with consent to intercept and monitor communications of any sort on company devices, computers and phones. The written consent is catered for in section 4 of RICA.

There are additional benefits to such a policy. The term cyberslacking has been coined to define the practice of work-avoidance through internet use, social media use and related activities. Employers may choose to use the policy as an opportunity to set guidelines on personal use of company Computer Systems, including limits on personal use, unlawful content, downloadable content and protection of company data as well as the data of co-workers.

Purchase a WORKPLACE COMPUTER SYSTEMS POLICY online now.

Stuart Harris
BA LLB LLM
www.contractzone.co.za