Is an employee’s right to privacy absolute?

Is an employee’s right to privacy absolute?

Privacy is a valuable aspect of personality. Data or information protection forms an element of safeguarding a person’s right to privacy. It provides for the legal protection of a person in instances where his or her personal information is being collected, stored, used or communicated by another person or institution.

In South Africa the right to privacy is protected in terms of both our common law and in Section 14 of the Constitution. The recognition and protection of the right to privacy as a fundamental human right in the Constitution provide an indication of its importance.

In NUMSA and Another v Rafee N.O. and Others [2016] ZALCJHB 512, the court had to decide whether the employer’s instruction to an employee to hand over his mobile phone for inspection violated his right to privacy.

The facts of the matter were as follows:

  1. The employer’s instruction was based on a report that the employee took photos with his mobile phone of the company’s shift machines, production line and letter trays.
  2. The employee was instructed to delete the photographs relating to the company’s confidential business operations.
  3. The employee was requested to confirm whether he complied with the said instruction.
  4. When the employee was asked whether he complied with the instruction to delete the photographs he replied “no comment”.
  5. The employer then instructed the employee to make his phone available for inspection to determine whether the instruction was obeyed or not.
  6. The employee refused to hand over his mobile phone and argued that the mobile phone is his private phone which contained his personal information and that the employer had no right to look at his phone.
  7. The employer argued that its business operations needed to be kept confidential as it operated in a competitive environment.
  8. The employee was charged for:
  9. Failing to delete the photographs or confirm that it was deleted; and
  10. Refusing to make his mobile phone available to confirm that the photographs had been deleted
  11. The employee was subsequently dismissed.

The matter was referred to the CCMA, where the employee denied that he took the photographs. At arbitration, the commissioner found that the employer’s instruction to hand over the phone was reasonable and that the employee’s failure to obey the instruction warranted dismissal.

The employee then referred the matter to Labour Court for review.  The Labour Court dismissed the employee’s review application and held that it was not unreasonable to infer that it was likely that the employee took the photographs, failed to delete them, and retained them on his mobile phone. It also held that this conduct seriously undermined the trust relationship between the employer and employee.

Therefore, in conclusion the constitutional right to privacy, like its common law counterpart, is not an absolute right but may be limited in terms of law of general application and has to be balanced with other rights entrenched in the Constitution.

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Kal Louw joined SEESA in March 2009 and worked respectively at the Kimberley and Upington SEESA offices. He currently holds the position of SEESA Labour and Consumer Protection & POPI Legal Advisor at the Vredendal office.


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