Numsa v Nasima Raffee NO (Krost Office Products) (JR1022/12) [2016] ZALCJHB 512  ; [2017] 2 BLLR 146 (LC) (31 May 2016) per Lagrange J.

As requested by the former employee the labour court reviewed an arbitral award but refused to set it aside, as it was not unreasonable.  There was a valid reason to dismiss the shop steward related to the potential risk of industrial espionage.  He photographed the production process without any authority.  He then refused to delete the photos or allow his cell phone to be inspected.  His claim to privacy was correctly rejected.  The reason for dismissal was also fair because his behaviour breached his duty of good faith towards the enterprise.

Excerpts without footnotes

[7]   The company’s production manager, Mr R Maluleke (‘Maluleke’) gave evidence that Sangweni had arrived before 08H00 on the morning of 18 August 2011 and had started to take photos of the production lines, the shift machine and letter trays. He had then proceeded to the planters and taken photos of them.  Maluleke asked another manager whether he had given Sangweni permission to take photographs and was told that he had not, so he informed Krost.  He also confirmed that the CCTV cameras were not working and said that other workers also asked why Sangweni was taking photos.

. . . . .

Review grounds

[10]   The main thrust of the applicants’ ground of review is that the arbitrator unreasonably concluded that the instruction to Sangweni to hand over his cell phone for inspection was lawful, because she failed to consider that it was his private property and that it contained private information of a confidential nature.

In so doing, the applicants contend that the arbitrator neglected to consider whether the instruction violated the applicant’s right to privacy contained in section 14 of the Constitution, which states:

“Privacy

  1. Everyone has the right to privacy, shall include the right not to have-

(a) their personal homes searched;

(b) their property searched;

(c) their possessions seized; or

(d) the privacy of their communications infringed.”

[11]   The applicants also contend that the arbitrator failed to consider whether the instruction to hand over the phone would have been a breach of rights in terms of section 25(1) of the Constitution, which states inter alia:

“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” . . .

. . . . .

[12]   In Bernstein v Bester NO, it was held that:

“The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is already limited by every other right [accruing] to another citizen.  In the context of receive [sic – privacy] this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community.  This implies that community rights and rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society.

Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.”

[13]   The applicants rightly contend that in the employment context, the competing interests of employee’s rights to privacy have to be weighed against the employer’s right to protect its business interests.

In this instance, the employee has a right to preserve the confidential nature of personal information on his cell phone.  The company for its part, asserts its right to preserve the confidentiality of information about its business operations.

In the case relied on by the applicants Protea Technology Ltd and Another v Wainer and Others 1997 (9) BCLR 1225 (W) [per Heher J] the High Court held that the applicant was not entitled to intercept private calls made by an employee, but that where the employee was engaged in matters pertaining to the employer’s business, the employee lost the right to the privacy of those communications:

“The first respondent was employed by the applicants in a position of trust.  The telephone conversations were conducted from the applicants’ business premises within business hours.  The applicants were entitled to require the first respondent to account for his activities during their time.  (It will be recalled, in addition, that the first respondent was contractually obliged to devote his full attention to the affairs of the group.)

It may be accepted that, even in this context, and within reason and at the direction of the employer, an employee’s private life is not excluded.  Thus he may receive and make calls which have nothing to do with his employer’s business.  The employee making such calls has a legitimate expectation of privacy.  Although he must account to his employer if so required for the time so spent, the employer cannot compel him to disclose the substance of such calls.  The content of conversations involving his employer’s affairs (whether directly or indirectly) is a different matter.  The employer is entitled to demand and obtain from an employee as full an account as the latter is capable of furnishing.  In this sense also, the company can fairly be regarded as the owner of the knowledge in the employee’s mind: cf.  Bernstein’s case at 796E–F (although the context differs from the present).

…

As soon as the employee abandons the private sphere of his conversation for that of the affairs of his employer he loses the benefit of privacy.  The determination of that moment will not generally be one of great difficulty.”

. . . . .

[17]   In this instance, the arbitrator’s finding that Sangweni’s dismissal was substantively fair was not an outcome that no reasonable arbitrator could reach. It would not be unreasonable to infer from the evidence that the applicant most probably did take photos of the production line, which he was not entitled to do and that he had not taken steps to delete the photographs from his phone.

In those circumstances, given the absence of the applicant even claiming that he had deleted them and also being unwilling to demonstrate that he had such photos on his phone, it would not be unreasonable to infer that he had retained them, which seriously undermines the existence of the trust relationship which is supposed to exist between employer and employee. 

Consequently, in my view, it cannot be said that the overall conclusion that Sangweni’s dismissal was fair is one that no reasonable arbitrator could have reached on the evidence.