Benita du Plessis
Cape Town Branch
The last two decades have seen the rise of amazing technological achievements in the area of computing, and have forever changed the way the business is conducted. E-mail has replaced memos and other correspondence; computers have replaced filing cabinets; and the internet has allowed people access to virtually unlimited information without ever leaving their desks. These new technologies, however, bring with them new liabilities and other concerns for employers.
Internet abusers range from senior management in private offices viewing explicit pornography, to the administration assistant in a cubicle that spends two (2) hours a day doing online shopping, posting comments and uploading photos on popular chat sites like Facebook, and paying bills through the company Internet. Internet abuse is endemic in the workplace and organizations are being forced to face the problem head on, or suffer the consequences.
Companies who are utilising the internet as an effective business tool are now realising that misuse of this asset could turn out to be very expensive-eating into their resources (bandwidth, time, etc), and compromising on security and employee productivity. Among the many consequences of internet abuse is a loss of productivity and scores of litigation issues such as sexual harassment, hostile work environment and discrimination. Monitoring employee internet access is one way that an organization can limit its liability and improve productivity.
Common instances of misuse
Some of the most prevalent instances of misuse are:
- File-sharing, gaming or other activities which utilise an unnecessary and excessive amount of available bandwidth and disrupt the genuine use of the corporate network/the internet by others;
- Causing interruptions in the network and/or the internet by spreading computer viruses etc;
- Sending electronic chain letters;
- Sending messages with an intention to harass/malign, or exchanging potentially offensive messages;
- Online chatting and instant messaging including Facebook, MySpace and various other chat sites;
- Shopping and gambling online;
- Surfing pornographic sites;
- Disclosing customer-sensitive information
Clearly, there is a need to reduce internet misuse in the workplace. It is recommended that companies take two steps to address the problem of misuse of the internet and e-mail resources:
- Establish an internet and e-mail usage policy.
- Enforce the policy effectively.
It is vital for employees to be made aware that all systems are provided by the company and are the property of the company. Therefore, all communication and information transmitted and stored in these systems are to be used for job-related communications only. The company thus has the right to monitor all communication and information sent and received on these systems. This does however give rise to the issue of privacy in the workplace. South Africa's case law is lacking in precedent on the latter issue of privacy in the workplace insofar as electronic communications tools (e-mail and the Internet) are concerned. A number of arbitration cases however illustrate the view that the courts will be more accommodating of employer monitoring of internet and e-mail activity.
There is not a large amount of case law existing on employees misuse of the employer's facilities in this respect. The most well known case is that of Jacqueline Bamford and four others who were employed by Energizer (SA) Ltd. The employees were dismissed on grounds of having repeatedly violated the companies policy and procedure regarding the use of the employer's electronic mail system, using the employer's facilities for receiving and distributing pornographic material and jokes.
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 they maintained that the employer had violated their right to privacy in intercepting their private e-mails. An important point emerging from this case was that the arbitrator concluded that individuals do 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 the transmission of personal and private communications if they do want outside parties to be privy to those communications, and perhaps even more importantly, employees must be made to understand that upon entering the employers premises, a large part ot their "right to privacy"is forfeited whilst they are under the direction and control of the employer.
In Toker Bros (Pty) Ltd and Keyser (2005) 26 ILJ 1366 (CCMA) , the importance of developing and implementing a proper electronic communications policy was highlighted when the commissioner found that the employer had no clear and written rule regarding the use of the internet by employees, but that the employees were left to use the facility discreetly and to the minimum.
Notwithstanding the principles relating to privacy in the workplace, the CCMA, as well as foreign jurisdictions, appear to be developing a restrictive approach in respect of e-mail and Internet monitoring. There appears to be less tolerance of the employees' right to privacy insofar as the use of e-mail and the Internet is concerned. It is possible that the reason for this is the enhanced ability to cause harm provided by the internet. Multiple e-mail communications are quick and easy. The data created by e-mail and cybertrails on the internet are practically indelible and have the potential financially to destroy employers even without the intention to do so.
The implementation of such a policy will however be worthless and ineffective if internet usage and electronic communications are not monitored on a regular basis and disciplinary action taken against the perpetrators. This will ensure that employees refrain from abusing or making improper use of email and internet as well as eliminate distribution of defamatory fraudulent, harassing messages, or otherwise any illegal or wrongful conduct.
Contact your Labournet consultants to assist you to draft and implement an internet policy for your company. Not yet a Labournet client, but would like to know more about our service and products, visit our Labournet website or send a mail to sales and they will contact you to set up an appointment.
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Disclaimer
The information published in this article or newsletter is of general nature and should not be used without obtaining specific advise as to its application in your business or under your specific circumstances. Labournet will accept no liability if the information is used without first obtaining specific advise from one of our consultants.