Employers should take proactive steps to protect themselves against risks posed by employees` use of e-mail and Internet, legal experts say.
According to Reinhardt Buys, a director at Buys Incorporated, instances of face-to-face employee harassment and racism are being replaced by the use of e-mail, Internet, messaging and SMS to distribute tasteless jokes, harmful texts and even adult video clips.
"The courts require employers to take proactive steps to secure a friendly, peaceful working environment free of harassment," he says.
Buys says it`s not enough for employers to develop workplace policies that prohibit abuse of e-mail and Internet facilities. Employers should also take strong decisive action against those who violate these policies, he says.
"In a number of recent Commission for Conciliation, Mediation and Arbitration cases, employees who abused corporate Internet and e-mail facilities claimed they did not know about their employers` related policies and rules," he says.
Buys also notes that as employers generally have deeper pockets than employees, many harassment cases against employees may be dropped in favour of claims against employers.
Intercepting communication
Wim Mostert, director at Mostert Opperman Goodburn attorneys, says employers should develop a policy that deals with employee e-mail usage. It must outline the employer`s right to intercept and monitor e-mail, and set rules prohibiting the sending or forwarding of offensive or otherwise unlawful e-mails, he says.
It is, however, unclear whether the Regulation of Interception of Communication Act makes it mandatory for an employee to give written consent before interception takes place.
Buys says written consent is required and failure to obtain it may cost a company up to R2 million in fines. Mostert says section six of the Interception Act allows for employers to monitor e-mails without written consent, provided employees are given reasonably sufficient prior notice of the intention to monitor communications.
Employee consent
"There are, however, a few circumstances where employee consent is useful and a limited number of circumstances where employee consent is still needed for interception and the provisions of the Interception Act will be insufficient," says Mike Silber, a consultant with Michalson attorneys.
"Employee communications lawfully intercepted in terms of the Interception Act may possibly not be admissible as evidence in an employment-related dispute between an employer and employee if the interception is regarded as 'unfair` to the rights of the employee," he says.
Mostert says the courts will not expect employers to remove all e-mail-related legal risks due to the large volume of e-mails transmitted by employees daily.
A recent study by Symantec shows the average South African employee sends around 20 e-mails per day while some employees send up to 350 and receive up to 450 a day, he says.
"No matter what measures employers put in place, there will always be incidents causing legal risk," he says.
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