The internet - do you or don't you? Part 3

 This is the final part of our series on employees and the internet. 

The main issues around whether or not the employer can intercept (read, download, etc ) employees e-mails are clarified in the Regulation of Interception of Communications and provision of Communication-related information Act, 2002, (the Act) and of course other sources, not the least of which is accepted custom and practice.

If an employer provides resources for business purposes, then he is entitled to prohibit private use of those resources.

An employer is entitled to expect his employees to come to work to carry out their contractual duties – not to attend to private affairs.

I know of at least one employee who contacted me, enquiring whether it was fair labour practice for an employer to refuse to grant a rest period of 30 minutes morning and afternoon, in addition to meal and tea breaks because “we work in a very stressful environment.”  Can you believe it ??

If employees can’t take the heat, then they must stay out of the kitchen. If employees want to rest, then go to bed earlier.

The Act states, in Chapter 2, Part1 section 5 , that any person other than a law enforcement officer, may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception.

The first thing then that the employer needs to do is to include a clause in the employment contract to the effect all electronic communications equipment is provided by the employer for business purposes, and that private use thereof is prohibited.

The second thing is that the employer must include a clause in the employment contract, stating that , in accepting employment with (name of Company), the employee agrees that the employer will from time to time intercept all e-mails communications, that are sent or received by the employee.

The Act also makes the following provision : (Chapter 2 , Part1 section 6 sub-paragraph 1)

“Any person may, in the course of carrying on any business, intercept any indirect communication (e-mail) :

a)       by means of which a transaction is entered into in the course of that business.

b)       Which otherwise relates to that business

c)       Which otherwise take place in the course of the carrying on of that business in the course of its transmission over a telecommunications system.

 The Act states further (sub-paragraph 2) that a person may intercept an indirect communication (e-mail)

 d)       in order to establish the existence of facts

e)       for purposes of investigating or detecting the unauthorized use of that telecommunications system

The above provisions – from a)  to  e) are the reason why the employer stipulates that all electronic communications equipment is provided for business purposes only, and that private use is prohibited.  

and includes further

 a)       if the telecommunications system concerned is provided for use wholly or partly in connection with that business

b)       if the system controller has made all reasonable efforts to inform in advance a person who intends to use the telecommunications system concerned, that indirect communications transmitted by means thereof may be intercepted or if such indirect communication is intercepted with the express or implied consent of the person who uses that telecommunications system.

The above provisions cover the employer in that the employee has been informed in the employment contract.

To summarize, the employer is entitled to stipulate (and indeed should stipulate) in the employment contract that all electronic communications equipment is provided for business use only and that private use is prohibited, further that interception of communications shall take place from time to time , and that any breach of these requirements shall result in disciplinary action which may lead to dismissal.

For further enquiries, contact Derek Jackson on advice@labourguide.co.za

The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za