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The
internet - do you or
don't you?: Part 1
Some
time
ago, we
published a series
of articles in
our newsletter regarding
your employees’ use
of the internet
and your electronic
and communications
equipment, such as
e-mail, telephone and
fax facilities.
We
still
receive a number
of e-mail enquiries
via our website
from employers who
seem to be
experiencing difficulty
with employees surfing
the internet and
making use of
the employer’s e-mail
facility for correspondence
with family and
friends.
Indeed,
we
also receive a
number of enquiries
from employees,
demanding to know
what action they
can take against
an employer who
has read their
private e-mails and
has thus "violated
my right to
privacy."
When the
employer
attempts to monitor
the use of
his e-mail facility,
he is confronted
by employees who
maintain that he
is violating their
right to privacy
and that the
employer has no
legal authority to
read their private
e- mails.
So what then is
the position?
Firstly, let
us
have a look
at what employees
can do,
and probably are
doing, with
your company time
for which they
are being paid,
and also what
are they doing
with your e-mail
facilities which you
provide for business
purposes?
Employees can be
wasting your time
simply "surfing
the Net",
playing games on
the internet, either
with themselves or
with other employees,
they could be
wasting company time
by going into
chat rooms,
they might also
be running their own
little sideline
business by using your
facilities.
Then there
is
the other more
serious side,
such as downloading
or distribution of
pornographic material,
other undesirable
material which may be political
or racist in content
, distributing dirty
jokes, or even
giving away trade
secrets to a
competitor for personal
gain. They
might even be
very quietly
e-mailing your customer
data base, pricing
structures and so
on to their
own private e-mail
addresses, having
the intention of
later resigning and
starting a business
in opposition to
you.
These are
only
some of the
reasons why the
employer needs to
have full and
total control over
his electronic
communications equipment,
which includes
telephone and fax
facilities.
There is
still
not a large
amount of case
law existing on
employees misuse of
the employer's
facilities in this
respect.
Probably
the
most well-known case
is a that
of Jacqueline Bamford
and four others
who were employed
by Energizer (SA) Ltd, and
who were dismissed
in October 2000 on
grounds of having
repeatedly violated
company policy and
procedure regarding
the use of the
employer's electronic
mail system,
using in the
employer's facilities for
receiving and for
distributing pornographic
material and jokes,
and for violating
company procedures.
The
employees
involved in this
case maintain that
the employer did
not have any
rules in place
in respect of
the alleged e-mail
abuse, they
maintained that they
did not send
chain letters over
the system,
and they maintained
further that there
was inconsistency
on the part
of the employer
in the application
of discipline -
and
of course the
very famous one
- they maintained
that the employer
had violated their
right to privacy
in intercepting their
private e-mails.
This case
was
reported on by
Tony Healy in the
Star Newspaper
workplace supplement on October
10th, 2001.
An important
point
emerging from this
case was that
the arbitrator
concluded that individuals
do not have
an automatic right
to utilise the
employer's facilities
for the purpose
of personal and
private communications, and
then
not expect to
their employer to
read these
communications during the
course of his
monitoring the use
of his equipment.
Employees should
be
made to understand,
if they do
not already
understand, that
the internet is
public domain,
and no employee
is entitled to
utilise his employer's
business equipment,
which is provided
to the employee
for business purposes,
to further his
own personal and
private interests.
Every employer
has
the right to
insist that are
the resources with
which he provides
his employees are
to be used
strictly and solely
for business purposes,
and that the
personal or private
use thereof
is strictly forbidden.
Employees
must
also understand that
they should never
use the internet
for the transmission
of personal and
private communications
if they do
not want outside
parties to be
privy to those
communications, and
perhaps even more
importantly, employees
must be made
to understand that
upon entering the
employer's premises,
a large part
of their "right
to privacy"
is forfeited whilst
they are under
the direction and
control of the
employer.
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