| Summary: | The right to privacy is a fundamental right guaranteed by section 14 of the
Constitution of the Republic of South Africa, 1996. The question that needs
to be answered is whether an employee has a right to privacy in the
workplace and, if indeed so, to what extend.
If it is established that an employee does indeed have a right to privacy in
the workplace, it will be no surprise that the employer might want to limit this
right in order to protect his business interests, confidential information, and
stock. It should be quite obvious that there is a potential conflict of interest
between the rights and interests of the employer and employee. The
purpose of this mini-dissertation is to find some guidelines to regulate this
aspect and to look at the ways in which the right to privacy can be
legitimately limited.
No right is absolute. Section 36 of the Constitution provides that a
fundamental right can be limited in certain circumstances. Furthermore, in
accordance with the common law, an employee must have a "legitimate
expectation of privacy" before it can be said that this right has been
violated. This means that a person must have a subjective expectation of
privacy that the community regards as objectively reasonable. Specific
cases of violation will be investigated: in particular e-mail monitoring, phone
tapping and searches. Legislation that regulates monitoring in particular is
the Regulation of Interception of Communications and Provision of
Communications-related Information Act 70 of 2002. This act puts a
general ban on monitoring of a third party's communications, save for some
exceptions.
As will be seen, relevant defences in claims for invasion of privacy will
include consent and necessity. An employee may consent to the
monitoring of his communications by the employer. This consent can be
given expressly or by implication. Some of the ways in which the employer
can obtain this consent, is by a provision in the contract of employment, a
clear policy in this regard, or by giving express notice. Once again the test
that needs to be applied is that of "legitimate expectation". On the other
hand, necessity might warrant the monitoring of an employee's
communications. If monitoring was indeed necessary, is a question that will
depend on the facts of each relevant case.
The position in South African law will be compared to that of the English
law. These two systems regulate the right to privacy in the workplace in
much the same way. It does seem that there is a tendency beginning in
English law to move away from the "contracting out" of fundamental rights,
like the right of privacy. This is done in order to protect the interests of the
employee, who does not have the same bargaining power as the employer,
who most of the time has more leverage on his side. This is certainly a
legitimate concern, but if this position can be applied in our law, is an open
question. In my opinion there should be no objections to an employee's
own decision to limit his right to privacy in his workplace. === Thesis (LL.M. (Labour Law))--North-West University, Potchefstroom Campus, 2006.
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