Employment law update – Balancing of employee’s right to privacy against employer’s right to protect confidential information

April 1st, 2017

Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowmans in Johannesburg.

In National Union of Metalworkers of South Africa v Rafee NO [2017] 2 BLLR 146 (LC), the employee took photographs of the employer’s production line. When the employer found out about this the employee was given a verbal warning that he was not permitted to take photographs. He was furthermore, instructed to delete the photographs that he had taken and to hand over his cellphone so that the employer could check that the photographs had been deleted. The employee refused to hand over the phone on the basis that it was his private property and that he was entitled to take photographs. After refusing to hand over the phone four times he was suspended and called to a disciplinary hearing.  The employee was found guilty and dismissed for the failure to delete photographs of the employer’s production line and refusing to hand over the phone so that management could ensure that the photographs had been deleted.

The employee referred an unfair dismissal claim to arbitration. During the arbitration the employee argued that he had not taken any photographs. The arbitrator found that the employer’s instruction to hand over the phone had been reasonable in the circumstances and thus the dismissal was fair.

The employee then reviewed the arbitrator’s decision alleging that the arbitrator failed to take into account the fact that the phone contained private and confidential information pertaining to the employee and that the employer intended infringing his constitutional right to privacy and to lawful possession of his property. The Labour Court (LC) per Lagrange J found that there was no infringement of the employee’s right to possession of property as the employer had not demonstrated an intention to confiscate the phone. As regards the right to privacy, the court found that this right is not absolute and that in the employment context there must be a balancing of the employee’s right to privacy against the employer’s right to protect its business interests. It was found that taking photographs of the production line was similar to copying plans of the production layout and thus constituted the employer’s confidential information. It was found that the employee’s conduct resulted in a breakdown in the trust relationship and that the arbitrator’s finding that the dismissal was fair was reasonable. The review application was dismissed.

Employer’s policy resulting in dismissal found to be substantively fair

In Woolworths (Pty) Ltd v South African Commercial Catering and Allied Workers Union and Others [2017] 2 BLLR 137 (LAC), an employee was dismissed after her till was found to have excess cash. The arbitrator found that dismissal was too harsh a sanction in the circumstances and thus the dismissal was substantively unfair. The employer was ordered to reinstate the employee. In making this finding, the arbitrator considered the fact that there were no irregularities detected and the reason for the excess was unknown. The arbitrator was accordingly of the view that the employee had not been negligent and there was no evidence that the employee was dishonest or wanted to benefit from the surplus. Furthermore, the employer had not suffered any loss.

On review, the employer argued before the LC that the arbitrator committed a gross irregularity as he did not apply his mind to all the evidence before him, had failed to consider the previous till discrepancies, had concluded that the employee was not negligent and had imposed his own views on the employer’s policies. The LC found that the arbitrator had reached a reasonable decision and dismissed the review application.

The employer appealed the LC’s decision on the basis that the arbitrator’s decision was unreasonable as he made findings that were not based on the evidence before him. In this regard, there was evidence before the arbitrator that there had been five previous till discrepancies and that the employee was on a final warning for the last till discrepancy. Furthermore, the evidence before the commissioner was that in terms of the employer’s policy, in the event of till shortages and excesses above R 500 there would be a disciplinary inquiry and the appropriate sanction should be dismissal.

The Labour Appeal Court (LAC) found that the arbitrator had failed to appreciate –

  • the nature and importance of the rule breached;
  • the reason the sanction of dismissal was imposed;
  • the basis of the employee’s challenge to the dismissal; and
  • whether the employee was likely to repeat the offence and her short length of service.

It was held that the arbitrator’s finding that the dismissal was unfair was unreasonable. The appeal was upheld and the dismissal was found to be substantively fair.

Dismissal for gross insubordination upheld by LAC

In Msunduzi Municipality v Hoskins [2017] 2 BLLR 124 (LAC), a human resources support manager was dismissed for ‘gross insubordination, gross insolence and gross misconduct’ as a result of him failing to obey the municipal manager’s instruction that he desist from representing employees in disciplinary hearings. The employee argued that the employees had a constitutional right to be represented by a fellow employee and that there was no conflict between his role of employee representative in disciplinary hearings and his managerial position.

The bargaining council upheld the dismissal but on review the LC set aside the award on the basis that it found the sanction of dismissal too harsh in the circumstances. These circumstances included the fact that –

  • the employee had long service with the employer;
  • there was no evidence of similar misconduct in the past;
  • the employee was over the age of 50 years, and thus unlikely to get another job; and
  • there was no evidence that it would be impractical to reinstate the employee.

The LC replaced the arbitrator’s award with an order of reinstatement coupled with a final written warning.

On appeal, the LAC found that the employee had challenged and seriously undermined the authority of the municipal manager. He had also posted a letter about the municipal manager on the notice board and distributed it to employees and a union of which he was not a member. In this letter the employee made it clear that he was not going to obey the instruction of the municipal manager and dared the municipal manager to take further action against him. He continued to represent the employees in disregard of the instruction. He also showed no remorse at the arbitration.

The LAC was of the view that the arbitrator applied his mind to all the evidence before him and found that dismissal was the appropriate sanction given the seriousness of the insubordination and the lack of remorse. It was held that it was a reasonable decision and that the LC misdirected itself in finding that the employee deserved a second chance without advancing any reasons as to why this would be appropriate. The appeal was upheld.

This article was first published in De Rebus in 2017 (April) DR 40.