Can an employer monitor employee communications?

by | Mar 7, 2018 | Employment law, Publications

Employers often provide their employees access to emails, so they may have the necessary tools to complete their work. For this reason, employers assume they have the right to monitor the emails of their employees. However, it is not that simple and clear cut as there are competing rights to be balanced. The employer has a right to protect its proprietary interests while the employees have the right to protect their right to privacy . It is important to understand when an employer can monitor or intercept an employee’s emails.

RICA Provisions and case law

The Regulation of Interception of Communication and Provision of Communicate-Related Information Act 70 of 2002 (“RICA”) regulates the interception or monitoring of paper-based and electronic communications. Section 2 of RICA prohibits the intentional interception of communication, whether direct or indirect, unless it is intercepted by a party to the communication, or if an author of the communication has consented thereto.

In Smith v Partners in Sexual Health (non-profit) the employer’s chief executive officer (CEO) gained access to an employee’s private Gmail account while she was on leave. The CEO discovered emails between the employee, her colleagues as well as persons outside the organization, which referred to internal matters. At first, access to the email account was gained accidentally but subsequent access was intentional.

The employee was dismissed for inter alia, bringing the employer’s name into disrepute. The employee contended that the emails were accessed in violation of her right to privacy and in contradiction of RICA. The CCMA found that the intentional access contravened RICA and the evidence obtained through this access was inadmissible on the basis of an infringement of the constitutional right to privacy. The CCMA placed considerable weight on who owned the Gmail account and concluded that the CEO had no right to read the employees emails since it was her personal account (on the employer’s computer). The CCMA held that the employee’s dismissal was procedurally and substantively unfair.