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Employers and employees must be careful how they use WhatsApp to communicate in the workplace, Kavita Kooverjee, Senior Professional Assistant at Schoemanlaw Inc, has warned.
In an article shared on legal information portal GoLegal, Kooverjee warns that although WhatsApp is a convenient tool of communication in the workplace, it does come with its problems.
According to Kooverjee, an employee does not have to respond or be messaged during non-working hours or days.
“An employee should not be expected to be available 24 hours a day to an employer and employers should not feel free to contact employees whenever they want,” said Kooverjee.
“But we all know emergencies do emerge and sometimes communicating on WhatsApp can ease the situation very quickly. So, using WhatsApp messaging for work does have some perks.”
According to Kooverjee, the Cybercrimes Act does create offences for threats to people, categories of people and property through data messaging.
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“This also includes sending personal work data to people outside of work through WhatsApp.
“You need to be mindful of the content you share on your WhatsApp groups. One innocent joke can lead to a whole lot of legal issues. So be mindful of what you are sharing and with whom you are sharing this information. In conclusion, keep your messaging legally clean and relevant and try your best to keep your work-related messaging during work hours.”
Advising workers on the lawfulness of instructions sent via WhatsApp, trade union Solidarity warned that if an employee refuses to carry out an employer’s instructions, it may result in disciplinary action and even dismissal, regardless of the platform used to communicate the instruction to the employee.
“The fact of the matter is that a conversation, and more specifically an instruction, on WhatsApp is nothing else than a written instruction and has the same status as an instruction given by email. In the case of a WhatsApp group there are also witnesses who are aware of an instruction that was given. Regardless of whether it is a written message (text message) or a voice message (voice note), as long as the instruction is fair and within the capability of the employee it is a “lawful” instruction that has to be carried out by the employee,” said Solidarity.
The employer must also ensure that the employee received the instruction and understands it.
“The employer also has to confirm that the employee will carry out the instruction. The employer has to be sure of the fairness of the instruction and that it is within the capability of the employee.”