Last month (October 2011) the CCMA ruled in favour of an employee that was fired for what she said in e-mails from her personal Gmail account.
Michalsons attorney David Luyt explained that according to the case report, the employee complained about her job, her boss, and told people outside the non-profit she worked for about its daily activities.
The employee’s boss came upon the e-mails accidentally, but returned to look at them a second time.
Luyt explained the events as follows:
- The company (a non-profit organisation) initially used a company Gmail account as it did not have its own domain.
- The employee, Ms. Smith, was an administration assistant and one of her tasks was to check the company Gmail account and forward e-mails to their new e-mail address.
- Smith also had her own personal Gmail account.
- Smith went on leave and the company CEO, Ms. de Lora, wanted to check the company Gmail for new messages.
- Smith forgot to sign out of her personal Gmail account and the CEO ended up looking at it instead.
- At first, the CEO didn’t realise she was looking at her employee’s personal email.
- The CEO worked out they were Smith’s personal mails when she went back for a second look, and ended up signing into the company Gmail.
De Lora fired her employee because of what she saw in the e-mails, but Smith argued the dismissal was unfair, putting forward the following arguments:
- Her employer had intercepted her private Internet based e-mails on Gmail unlawfully.
- Her employer’s actions were not justified by our monitoring law, the Regulation of Interception of Communication and Provision of Communication-Related Information Act, 70 of 2002 (“RICA”).
- Her employer’s actions infringed her Constitutional right to privacy.
- The emails that her employer sought to rely on were not admissible as evidence.
Luyt said that the Arbitrator held that Ms. De Lora (the CEO) had intentionally intercepted the messages when she returned to look at them a second time. The messages were stored on Google’s Gmail servers in terms of a contract between Google and the employee to which Ms. De Lora was not party.
The e-mail could not be used as evidence, the CCMA found, because it would unjustifiably infringe the employee’s right to privacy.
Ms. Smith was awarded R21,600.00 in compensation, because there were no grounds for dismissing her without the e-mails as evidence.
Based on an analysis of the evidence and argument by the Commissioner, Luyt said that it is clear that the decision might have been different had the private e-mails been stored on computer hardware owned by the employer.
Luyt said that in their view the court seemed to place too much emphasis on whether the employer owned the e-mail server hardware as being a test for who owned the e-mail.
“This is not correct, as the employer can still own the e-mail without owning the e-mail server hardware,” Luyt said.
Luyt went on to point out that neither the Electronic Communications Act 36 of 2005 nor RICA require that the system holding the e-mail or document being monitored be owned or controlled by the employer.
One can’t help but wonder whether setting up a simple forwarding rule from the company Gmail to its new e-mail address wouldn’t have prevented this whole incident.
Employer can open an absent employee’s e-mail in specific situations
Luyt pointed out that there are special circumstances prescribed by RICA when communications can be monitored.
Three of those exceptions were relevant to this case, according to Luyt:
- Where you are a party to the communication (the court held that the CEO was not a party to any of the communications taking place via e-mail in the employees Gmail account).
- Where one or more of the parties to that communication have consented in writing (the employee did not consent to the CEO monitoring in writing)
- Where it is for a business purpose and you have gone through some important procedural steps prescribed in RICA (no reliance was placed on this).
For a company to be able to open the e-mail of employees for a business purpose certain requirements have to be met.
- Any business transaction.
- Anything that relates in any way to the company’s business.
- Any activity that takes place in some or other way in the course of carrying on business.
This would include those situations where the company monitors communications to check whether they involve the business entering into transactions or relate in another way to the business, Michalson said.