In today’s technological world more and more employees work with electronic data. With the COVID-19 crises, employees are forced to work remotely accessing the employer’s data from home, but what happens if your data is deleted?
Data might be deleted intentionally or negligently. The question arises what can be done if this happens but first, we need to establish if the employee did it intentionally or negligently.
There are different reasons why an employee might delete his employer’s data.
Scenario 1 – Intentional data deletion: An employee is working from home due to COVID-19 and isn’t receiving full benefits and decides to delete important information of the employer intentionally to get even.
Scenario 2 – Negligent data deletion: An employee fails to take reasonable precautions to ensure the data is not deleted or unsaved and this results in the data being deleted.
The contents of the data being deleted will also play a role in determining the outcome of what will happen to an employee for deleting an employer’s data. Data that could easily be redrafted/recovered might mitigate the sanction that will be imposed on the employee. While data that cannot be redrafted/recovered will be considered as aggravation when the sanction is considered.
Item 7 of the Code of Good Practice Schedule 8, provides that any person who considers whether the dismissal for misconduct is unfair should consider:
- “Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and
- If the rule or standard was contravened, whether or not
- If the rule was a valid or reasonable rule or standard
- The employee was aware, or could reasonably have been expected to be aware, of the rule or standard
- The rule or standard has been consistently applied by the employer
- The dismissal was an appropriate sanction for the contravention of the rule or standard.”
Employees are under a common law obligation to act in good faith in all their dealings with their employer. The employee is expected not to act in a manner which would likely destroy or seriously damage the trust relationship between the parties.
When an employee deletes data of the employer he surely did not act in good faith, even if it was done negligently because reasonable care should be taken to avoid damage to his/her employer.
The trust relationship might also be irreparably broken between the employer and the employee due to the employee’s actions of causing damage to the employer and the employer will not be able to trust the employee with data again.
To justify an employee’s dismissal the employer will have to prove that the employee’s action resulted in a complete break in the trust relationship and dismissal was the only appropriate sanction. If the employee deleted data intentionally to cause damage to his employer it would surely lead to a breakdown of the trust relationship and dismissal might be the only appropriate sanction as the employer will not be able to trust the employee again as he might cause further damage to the employer.
If the employee negligently deletes data of the employer and caused damage to the employer it might still damage the trust relationship but dismissal might not be the only appropriate sanction as it will depend on the importance of the data and the damage suffered by the employer due to the deletion of data.
If the data is of a serious nature and it cannot be recovered and one of the core functions of the employee’s duties are to work with important data they trust relationship might be irreparable broken and dismissal might be the only appropriate sanction as the employer will have difficulty in trusting the employee to perform his/her duties as he/she acted recklessly by not ensuring the data is safeguarded properly while he/she was aware that the employer may suffer damage due to the data being deleted.
It is important to follow a fair procedure if the company want the ultimate sanction of dismissal.
SEESA has always been committed to providing ongoing quality service to all of our clients. Should you require any Labour assistance, please contact your nearest SEESA Office alternatively leave your contact details on our website at www.seesa.co.za
About the Author
Frans Kriek obtained his LLB from the Northwest University Potchefstroom in 2016 and joined SEESA in June 2018. He has since been employed as a Labour Legal Advisor at SEESA Head Office in Pretoria.