The Sunday Mail
Tichawana Nyahuma Legal Matters
(Continued from last week)
The possession and use of communication devices at the workplace will inevitably impact on employment relationships and accordingly, some questions arise:
- Is it lawful for employers to confiscate employees’ cellphones at the beginning of the day and then return them at the end of the day? In other words, is such conduct not an infringement of the employees’ rights as given to them by Section 61 of the Constitution?
- Where the employer does not, in fact, confiscate cellphones, are employees at large to enjoy use of their cellphones willy-nilly during working hours?
- If employees are stationed in offices where they use computers, does that give them the freedom to go on Facebook and other such social media platforms as they wish?
In my view, it all depends on the nature of the job.
For instance, if one is a bus conductor, there is no justifiable reason to restrict such a person’s use of his cellphone.
The same cannot, however, be said of a person who works at the front office or any other reception area frequented by large numbers of people requiring attention. Can you imagine a till operator in a large shop talking on the cellphone or playing on Facebook while customers wait to be served?
In cases like that, the employer can and should impose conditions in the contract of employment prohibiting such. Some employers go so far as to ban possession of cellphones on one’s person during working hours.
Sometimes, the condition may not be in the contract of employment itself. It may be contained in the collective bargaining agreement or the code of conduct.
Persons employed in environments where they necessarily have to use the computer and have access to the Internet can very easily spend hours of productive time on Facebook or Twitter.
In certain cases, security is paramount and employers are legally entitled to impose appropriate conditions limiting or altogether prohibiting possession and use of Internet-accessing devices by employees.
In an effort to curtail the use of social media at the workplace, some organisations in South Africa now have computer software that detects the time spent on social media during working hours.
The software will, at the end of the month, relay that information to the salaries department and a portion of the erring employee’s pay proportionate to the wasted hours is deducted.
So while the Constitution gives citizens/employees certain rights, those rights are not unlimited. Section 86 of our Constitution actually talks to those limitations.
The idea behind the limitations is mainly to ensure that he who exercises any right as granted by Section 61, should not do so if by exercise of that right, he infringes on the rights and freedoms of others.
In particular, Section 86(2)(b) states: “The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest.”
In conclusion, it is pertinent to highlight that every employment relationship is bound by a contract — oral or written.
Once the contract comes into existence, the employee gives up certain rights for particular times.
If the contract says the employee begins work at 8am and knocks off at 4:30pm, it means that the hours in the intervening period belong to the employer, except certain breaks such as tea and lunch time.
The employee may not, during work hours, engage in personal activities without the employer’s express or implied authority. Those personal activities include using social media for unreasonably long hours to the extent that it may be classed as “theft” of the employer’s time.
It is not in all cases that use of social media at the workplace is unlawful and no sanctions should visit any employee in circumstances were their use does not interfere with duties.
Tichawana Nyahuma is a researcher and a lawyer who writes in his personal capacity. Feedback: [email protected]
