Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
Many employers are still not aware of the Regulation of Interception of Communications Act (RICA) that came into effect at the end of September 2005 and that it was amended in 2008.
RICA is, in certain places, written in unclear terms.
For example, section 6 appears to allow monitoring of employee communications if these communications have been made in the course of the carrying on of the employer’s business. However, there is no clarity as to what “in the course of the employer’s business” means. Does it mean that the subject of the e-mail must be business related or does it merely mean that the e-mail must have been sent during business hours and/or via the employer’s equipment/communication channels?
However, section 2 of RICA very clearly outlaws the interception of any communication in the course of its transmission.
RICA appears to cover telephonic, e-mail and all other communications. The word intercept in section 2 of RICA means the “…acquisition of the contents” of the communication and includes access via “ listening to, viewing, examining or inspecting the communication.
The only section of RICA providing any hope for employers is section 5 that gives employers the right to intercept employee communications if one of the parties to the communication gives written consent thereto. However, employers will not find it easy to get such consent from employees.
It is most understandable that our lawmakers must protect people from being spied upon in the oppressive manner of South Africa’s old regime. Employers should have no interest in the private activities and communications of employees that do not affect the employer’s rights in any way.
For example, why would an employer want to know which film the employee plans to watch on Saturday night? However, what of the employer’s right to protect itself from employees who break it s rules and endanger its interests?
For example, how is an employer to protect itself from employees who:
- Send objectionable material to each other or to parties outside of the workplace?
- Use up band with that is needed for business purposes?
- Waste company time and money making private calls, surfing the net or sending private e-mails?
- Expose the employer’s computer’s to viruses?
- Expose the employer to lawsuits?
- Run their own private businesses vai the employers computers and email systems?
Employers need to be able to monitor employee usage of their communications systems in order to prevent the problems that arise from such misconduct.
In the light of RICA’s rigid provisions the best strategy that employers can use with any safety is to get written permission from all employees to monitor their e-mail or other communications. Employers should, in addition, draw up clear and comprehensive policies with regard to prohibiting the abuse of communication systems and the employer’s rights to protect their interests.
The obtaining of employees’ permission and the design of such policies should be done in consultation with a labour law expert in order to ensure that the employer neither infringes any legislation nor leaves any loopholes in its own system.
