Employee rights to privacy when using smart devices in the workplace

To what extent can an employee claim rights to privacy in regard to the use of a smart device in the workplace?

Employers often feel they are walking a tightrope when faced with how and/or when it might be appropriate to deal with an employee who uses his/her personal phone or electronic device in the workplace. Is it innocent or is there a more sinister intention behind such usage?

The Labour Court in the case of NUMSA obo Sangweni vs Krost Office Products (JR 1022/12) was faced with such a scenario. The employee, Mr Sangeni, a driver and union shop steward, was dismissed after being found guilty of the following two charges:

  • Failure to delete photos of the company from his mobile phone, or alternatively, failure to confirm that he had done so;
  • Refusal to make his phone available to verify that the photographs had been removed, which was a lawful instruction.

In terms of Section 14 of the Constitution, everyone has the right to Privacy, which shall include having–

  • their personal homes searched;
  • their property searched;
  • their possessions seized; or
  • the privacy of their communications infringed upon.

Further in terms of Section 25(1) of the Constitution–

“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

The Labour Court in the Krost case relied on the case of Bernstein v Bester NO 1996 (2) SA 751 (CC) which held as follows:

The truism that no right is to be considered absolute, implies that from the outset of interpretation that each right is limited by every other right. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.”

The court in the Krost case further relied on the case of Protea Technology Ltd v Wainer 1997 (9) BCLR 1225(W) and held in paragraphs 796 E and F that–

“An employee may receive and make calls which have nothing to do with his employer’s business. The employee making such calls has a legitimate expectation of privacy. Although he must account to his employer if so required for the time so spent, the employer cannot compel him to disclose the substance of such calls. The content of conversations involving his employer’s affairs (whether directly or indirectly) is a different matter. The employer is entitled to demand and obtain from an employee as full account as the latter is capable of furnishing. In this sense also, the company can fairly be regarded as the owner of the knowledge in the employee’s mind. As soon as the employee abandons the private sphere of his conversation for that of the affairs of his employer he loses the benefit of privacy. The determination of that moment will not generally be one of great difficulty.”

The Labour Court in the Krost case concluded that, “the action of taking such photographs is indistinguishable in principle from copying plans of the company’s production layout and putting these copies in a personal briefcase. He may be entitled to the privacy of his own personal data and information on his phone, but that does not entitle him to use his personal phone as a camera to capture confidential information belonging to his employer in which it has a proprietary interest. When he did that, he could hardly maintain that his right to preserve the confidentiality of his personal data entitled him to retain data about the company he had obtained without permission, which was stored on the same device”.

SERR Synergy assist employers to create specific and tailored workplace policies and procedures that balance the right to privacy against the employer’s right to protect their intellectual property, goodwill and reputational integrity. Through the said policies and procedures, we afford employers the opportunity and justification to discipline an employee for the unauthorised and/or malicious use of their smart devices in the workplace, which may lead to the employee’s dismissal.

About the Author: Jared Francis joined SERR Synergy in October 2016, and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng. He holds an LLB degree, a post-graduate Diploma in Industrial Relations and a post-graduate Certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds post-graduate Certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA and has more than 10 years’ experience in the legal and industrial relations fields respectively.