In the recent case of National Union of Metalworkers of South Africa v Rafee, the court weighed up the competing interest of an employee’s right to privacy and the employer’s right in protecting his business.

The case dealt with an employee who was dismissed on two charges: for failing to delete photographs from his mobile phone that he had taken of the production line of the company without the employer’s permission, and thereafter the employee failed to confirm that he had deleted these photos.

In addition, the employee refused to allow his employer access to his phone to serve as proof that he had deleted the photos in question.

According to Bradley Workman-Davies, director at Werksmans Attorneys, the employee was subjected to a disciplinary proceeding as he was aware that he needed permission to take any photographs which related to the procedures and functioning of the business, but had failed to obtain such permission.

“During the disciplinary hearing, the director stated that the reason they asked the employee to hand over his cellphone was to ascertain whether the pictures had been deleted,” he said.

“The employee refused and claimed that it would be an infringement of the employee’s right to privacy as the cellphone contained information about the employee’s family.

“The employer acknowledged the above and then allowed the employee to hand over his cellphone after four days, providing the employee with ample time to remove the private information. The employee still refused to hand over the phone which consequentially led to his dismissal.”

Court case

The employee referred the dispute for arbitration upon which the arbitrator found that the employee’s narration of the events were inconsistent to what was noted in the disciplinary proceeding.

“Additionally, the arbitrator noted that the request for the employee to hand over his cellphone was reasonable within the circumstances as the employee had been given a number of days to remove the private photographs from his cellphone and the refusal to obey the instruction given by the employer was that of a serious nature which warranted a dismissal,” Workman-Davies said.

The employee then reviewed the application in the labour court and contended that the arbitrator was unreasonable in concluding that the instruction made by the employer to hand over the employees phone was reasonable and lawful.

The arbitrator failed to consider that the employee’s cell phone contained private information and in doing so there was a violation to the employee’s right to privacy in terms of section 14 of the Constitution of South Africa, they argued.

The employee further stated that the arbitrator failed to consider whether the employer’s instruction was an infringement of his rights in terms of section 25(1) of the Constitution which relates to the arbitrary deprivation of property.

“The court stated that the employer had no intention to arbitrarily deprive the employee of his property as he did not wish to confiscate or be prohibited from using his cellphone,” Workman-Davies said.

“In addition to the above, the labour court had to weight the competing interest of the employee’s right to privacy and the employer’s right to protect their business.

“The employee, without a doubt has the right to preserve the confidential information that is contained on his cellphone in contrast to the employer’s right to preserve the confidentiality of his business operations.”

Importance of case

When an employee uses any form of technology or communication that may be directly or indirectly related to his or her business or employer, the former has the right to obtain the information that is stored and shared in a reasonable manner, said Workman-Davies.

Additionally, the employee does have an existing right to privacy in terms of the information that is stored but this right is not limited and excludes any information that is stored that may harm or infringe the employer and his business, he said.

“An employee therefore may have to temporarily cease possession of these personal items to prove to their employer that the information contained on their personal device will not negatively impact the employer and his business in any way.

The labour court concluded that the arbitrator was not unreasonable in determining that the dismissal was unfair in the above scenario and consequentially the application was dismissed.

“In light of the above, the court confirmed that a dismissal resulting from an employee failing to hand over his personal belongings upon which an employer has a reasonable suspicion that the information contained by the employee might have a negative impact on his business is indeed lawful and fair.”

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