Drakenstein Sakekamer

Employers beware! Werkgewers wees versigtig!

In August, financial services company FNB made headlines when it sacked four employees after monitoring their WhatsApp and email conversations.

The bank claimed that it followed a rigorous disciplinary process, including going to the Commission for Conciliation, Mediation and Arbitration (CCMA), and found that the quartet were guilty of a number of charges including ‘gross misconduct’ and ‘breach of duty of good faith’ towards the bank.

While politics and race underlined the issue, it also brought into to light how much power South African bosses have in tracking their employees’ correspondences. In South Africa, the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) regulates the interception and monitoring of employee communication in the workplace. In a breakdown of the Act, Tracy Robbins, associate at Baker McKenzie Johannesburg explained that section 2 of RICA contains a general prohibition against intentional interception of any communication.

However, there are two notable exceptions to this general prohibition, she said.

1. The employee consented to the interception;

or 2. The interception was done for a general business purpose.

“Employers can readily ensure that they obtain the consent of the employees by inserting such a provision in an employment contract or into a well-drafted policy,” said Robbins. This is because it is simpler to rely on and prove prior consent than satisfying the requirements for the general business purpose exception, she said.

While the consequences for employees can be harsh for employees – as was seen in the FNB case – the act works both ways, said Robbins. “Employers may be guilty of an offence and held liable to a fine of up to R2 million, or even imprisonment for a period up to 10 years, if they breach the RICA prohibition on interception,” she said. “Getting employee consent before interceptions communication is not only the right thing to do to stay out of jail or avoid a hefty fine, but it will also assist in managing the employee relations climate.”

She also highlighted that employees who know that their communications are monitored and have consented to it being intercepted are less likely to feel aggrieved when their employer takes such steps.