A Brief Guide to Disciplining Employees for Internet / IT Related Issues
South Africa has one of the highest costs of bandwidth in the world, and this alone should be a strong indicator to businesses that they cannot afford to waste company time, money and resources allowing employees to freely download things from the Internet and waste company time by surfing the Internet. Companies also are at risk in terms of what employees may download from several areas, firstly it may lead to criminal liability if for example child pornography is involved. Secondly companies may also find themselves being sued for employees downloading illegal pirate software, music movies and so forth. Then there is the obvious problems associated with viruses, spy-ware and so on that are attracted by bad Internet practice, as well as spam e-mails that end up blocking the company server. There is also the issue of sexism and racism, and it has been held by our courts that where an employee has been subject to these, and the company did not take adequate steps, the company is liable to the employee. So where does sensible business management go from here?
Firstly it is important that you ensure that the correct policies are in place telling the employees what they can and cannot do with computers that they use. Secondly it must be very clearly explained to them, so there can be no misunderstanding, of what is prohibited or is not prohibited. Thirdly any policy that is put in place must be shown to be consistently applied over time. It is no good letting everybody get away with it, and then finally jumping on one victim. It is also important to ensure that whatever policies are in place have been consented to by the employees, and that these are compliant with their employment contracts and South African labour law. A number of companies use policies drafted for foreign and especially American law which are therefore not necessarily applicable in the South African context (see our article on the risk of using foreign policies).
So having ensured that the policies are in place, it is now time to enforce them, and an employee is to be disciplined. It must be noted here that unless it is an extreme case, dismissing an employee for a first offense of this nature would not be upheld if challenged. It is therefore necessary to discipline the employee on three separate occasions for the employee may be fired. For the disciplinary hearing, it is obvious that evidence needs to be submitted, and it is important as an employer that such evidence bre gathered in the correct manner so it can be used.
Luckily the Electronic Communications and Transactions (ECT) Act comes to the rescue of most businesses in this regard, as section 15 (4) seems to have been drafted with these sort of incidents in mind. The section states that any electronic document or record, created in the normal course and scope of business, but has been authenticated by the signature of the company officer, must be accepted as evidence in any disciplinary process. Whatever evidence is gathered, it must also be borne in mind that the employee has privacy rights, and there are pieces of legislation such as the Regulation of Interception and Monitoring Act, all of which say that unless the employee has consented to monitoring of his or her electronic communications, such monitoring is illegal. Evidence gained from illegal action cannot be used, so it is important to ensure that the evidence is gathered in such a manner as to be legal. Server log files, that are generated in the normal course and scope of business, and that give indications of usage and traffic flow rather than specifically intercepting electronic message transfers, would be an obvious answer in this regard. Also needed for authentication is the signature of the company officer, authenticating their production.
At the disciplinary hearing the employer must first show that the employee understood the company policies that he or she has breached, and was at all material times aware of them. Secondly the evidence must be presented to the employee, and the employee be given a chance to respond to it. A written record of the disciplinary hearing must be kept, and it is advisable to keep records of all evidence presented in this regard as well.
The cost to businesses of wasted production time and wasted bandwidth, that are incurred by employee that surf the net, as well is all the risks that the company faces, both legal and technical, must ensure that business management take adequate steps to prevent this. It is an unfortunate fact that eventually this must lead to disciplinary hearings and perhaps finally to dismissal of employees, and it is important therefore to ensure that the steps comply with South African labour laws to avoid time-consuming and expensive CCMA hearings or labour court appearances. It is perhaps best where matters are technical to get explicit technical legal advice.
19 Aug 2005
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - email@example.com