Cell phone privacy at work ‘not absolute’

QUICK snaps of confidential business operations using a personal mobile phone could have lasting consequences for the employee behind the lens.

Corporate and commercial law firm, Cliffe Dekker Hofmeyr, warned it could even lead to dismissal with the support of the Commission of Conciliation, Mediation and Arbitration (CCMA).

One man’s case, in which he stated his employer’s instruction to hand over his cell phone for inspection violated his rights to privacy, recently backfired.

‘The employer’s instruction emanated from a report that the employee had taken photographs using his mobile phone of the company’s production line, shift machines and letter trays’, stated senior associate Samantha Coetzer and director Fiona Leppan.

‘The employee was instructed to delete the photographs relating to the company’s confidential business operations and to confirm that he had done so.

‘When the employer asked for confirmation that the photographs had been deleted from his mobile phone, the employee replied ‘no comment’.

‘The company asserted that its business operations needed to be kept confidential and that it operated in a competitive environment.

‘The employee was charged and dismissed for failing to delete the photographs or confirm that he had done so and for refusing to make available his mobile phone to confirm that the photographs had been deleted.’

Warranted dismisal

He then challenged his dismissal at the CCMA, but the arbitrating commissioner found that in the circumstances, the employer’s instruction to hand over the phone was reasonable and the employee’s failure to obey the instruction warranted dismissal.

Dissatisfied with the arbitrator’s outcome, the employee then applied to the Labour Court to review the award.

But the court too acknowledged the employer’s right to maintain the confidential information about its business.

‘It held that although the employee is entitled to the privacy of the information on his mobile phone, it does not entitle him to use his personal phone as a camera to capture confidential information belonging to his employer in which it has a proprietary interest.

‘It also held that the action of taking such photographs is indistinguishable in principle from copying plans of the company’s production layout and putting those copies in a personal brief case.

‘This case is important as it captures the fact that the right to privacy has its limitations and cannot be relied on by an employee acting with ulterior motives to retain an employer’s confidential information,’ Coetzer said.

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