Here’s when your boss is allowed to read your personal emails in South Africa
While it has long been understood that your company is allowed to monitor your work emails, there are also a number of considerations when sending emails from your personal inbox.
This is according to law firm Abrahams and Gross which highlights that the RICA Act currently regulates an employer’s right to intercept or monitor the communications of employees in the working environment.
“In the recent unreported case of ‘Smith and Partners in Sexual Health (Non-Profit)’ the CEO of a company accidentally gained access to one of her employee’s email accounts, mistakenly believing it to be the company’s account,” explained Abrahams and Gross’ Jeremy Simon and Wesley Scheepers.
“In the emails, the employee complained about her job and her employer and informed others about the goings on at the company itself. The employee was dismissed and took her case to the CCMA where it was held that she was unfairly dismissed.
“The court in this case did not rely on RICA and instead placed more weight on who owned the Gmail account. The Court concluded that the CEO had no right to read the employee’s emails since it was her personal account (on the employer’s computer),” Scheepers said.
Exceptions
However, the court should have taken into account the several exceptions contained in RICA in coming to its decision, the legal experts pointed out.
An employer may rely on these exceptions to justify any monitoring or interception of an employee’s communications, the legal firm said.
“An interception, according to RICA, may be ‘authorised’ in various ways, including: if the employer is a party to the communication or if the monitored party has provided written consent.
“In addition, RICA provides that the employer will be justified if he or she will be able to prove the communication was intercepted in the course of the carrying on of any business; if that communication relates to that business, or which otherwise takes place in the course of the carrying on of that business,” Scheepers said.
Importantly, the interception must be effected by, or with the express or implied consent of the system controller:
- For the purposes of monitoring or keeping a record of indirect communications;
- To establish the existence of facts if the telecommunication system concerned is provided for use wholly or partly in connection with that business; and
- If the system controller has made all reasonable efforts to inform in advance a person who intends to use the telecommunication system concerned that indirect communications transmitted by means thereof may be intercepted.
“Therefore, to prevent civil litigation by employees should the employer be found to be monitoring or intercepting their communications, employers must ensure that their employees are fully aware of any policies regarding interception or monitoring and these policies should be included and explained in detail in the employment contracts,” Scheepers said.
“Should an employer fail to comply with the provisions of RICA, it runs the risk of being convicted of a criminal offence, and could be forced to pay a fine not exceeding R2 million or be imprisoned for a period not exceeding ten years.”
Read: 3 things which you are legally required to tell your new boss in any job interview in South Africa
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