Catching your employee red-handed

The saying having been caught red-handed seems to have lost its meaning as it appears you are now required to catch someone red-handed with consent or by notice.

This has been the situation for several employees in instances where an employer has installed hidden cameras without notice to the employee and having video recorded the employee without the employee’s consent thereto.

It can be argued that the lack of notice or consent has no bearing on the content captured on video, even if there was, or was no notice to the employee or consent, or no consent. The intentions of the person captured on video are clear.

The fact however is that notice or consent defeats the purpose of making a video recording in the first place as the disgruntled employee will now be aware and tread carefully. This in itself immediately changes the advantage point and causes the exercise of making a video recording futile.

Before electing whether this approach of notice or consent is required, one has to take all factors into consideration, which inter alia include the employee’s right to privacy.

The right to privacy is entrenched in section 14 of Chapter 2 of the Constitution of the Republic of South Africa’s 1996 Bill of Rights, meaning everyone has the right to privacy, which specifically includes the right not to have the privacy of their communications infringed.

All rights may however be limited in terms of section 36 of the Constitution if it is reasonable and justifiable in an open and democratic society. Needless to say, one’s right to privacy may be limited, when for example it relates to the infringement of a person’s communication, in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (RICA).

The RICA defines communication to include both direct (which entails oral commination in the immediate presence of another person) and indirect communication (which entails the transfer of information, including a message or any part thereof be it in the form of speech, music or other sounds; data; text; visual images, animated or not; signals; or radio frequency spectrum; or in any other form or in any combination of forms, that is transmitted in whole or in part by means of a postal service or a telecommunication system).

Although Section 2 of the RICA prohibits the intentional interception of any form of communication in the course of its occurrence or transmission, provisions are made to intercept any communication, for example in the one instance upon receipt of prior written consent from one of the parties to the communication (sections 3-9 of the RICA).

One may clearly intercept communication in the instance of being a party to said communication, however the situation is complicated if a person intercepts the communication without being a party thereto such as in the case of the so-called “nanny cam”.

A “party to communication” has also been specifically defined in section 1 of the RICA as any person:

“…participating in such direct communication or to whom such direct
communication is directed; or

in whose immediate presence such direct communication occurs and is audible to the person concerned, regardless of whether or not the direct
communication is specifically directed to him or her; or

the sender or the recipient or intended recipient of such indirect
communication; or

if it is intended by the sender of an indirect communication that such indirect communication be received by more than one person, any of those recipients; or

any other person who, at the time of the occurrence of the indirect
communication, is in the immediate presence of the sender or the recipient or intended recipient of that indirect communication; and

in instances of direct communication, any person participating in such direct communication or to whom such direct communication is directed; or

the sender or the recipient or intended recipient of such indirect
communication; or

if it is intended by the sender of an indirect communication that such indirect communication be received by more than one person, any of those recipients…”

If you are not a party to the communication you are not allowed to intercept the communication or even grant consent for the interception of the communication by a third party.

This current state of affairs has left various minds frustrated as one is surely entitled to monitor your premises by way of video recording in your absence.

The issue of consent is clearly a controversial one. Many employees have been successful in getting away with “murder” so to speak, despite having been caught red-handed, to name a few for example:

In the matter of Afrox Ltd. v Laka and others 1999, 20 ILJ 1732, the labour court overturned the arbitrator’s decision regarding the inadmissibility of the video footage. The video footage was initially disallowed and later allowed on the basis that it was relevant to the case at hand.

In the Moloko v Commissioner Diale and others 2004, 25 ILJ 1067 matter the labour court, in contradiction to the arbitrator, disallowed video footage which were initially allowed of an alleged assault due to the poor quality of the video.

In the Satawu obo Assagai v Autopax 2002, 2 BALR 17 matter the arbitrator allowed video footage as evidence despite the lack of consent by the employee that the employee may be videotaped. The arbitrator was of the view that the employee’s actions were not confidential and therefore had not been prohibited and further that the Interception and Monitoring Prohibition Act (IMP Act, the predecessor to the RIC Act) did not apply strongly to civil cases;

In the Numsa obo Mbeki obo others v Shatterprufe (Pty) Ltd. 2009, 1 BALR 9 matter employees were dismissed for stealing copper cables. Video footage indicated that the employees left the premises at a time which happened to be in contradiction with the testimony of Mr Mali, who gave evidence via video. Mr Mali was however not present during the proceedings and accordingly his video evidence were regarded as hearsay.

We therefore have to wait and see whether the RICA is enforced rigorously, in comparison to its predecessor, the IMP Act which happened to be enforced fairly leniently in accordance with an article by Jan du Toit on video and audio surveillance in the workplace.

By Albert Arnold
albert@dyason.co.za