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Every so often employers find themselves in predicaments with their employees where the lines between best practice and effective investigations get blurred. This happens even more in the context of misconduct, as the burden of proof to show that a dismissal was fair ultimately rests with the employer. It is therefore not unheard of for an employer to step beyond the line of what is lawful to obtain what is needed in order to prove misconduct. However, it is fair to say that this should be the exception rather than the norm.

The balancing act between an employee’s right to privacy opposed to the employer’s need to ensure conduct which facilitates a working trust relationship, is a knotty one.

Unlawful Searches Uncovering Relevant Evidence

This principle of whether an unlawful search can be condoned if evidence is relevant was tested in the matter of Mhlongo v AECI (1999) 20 ILJ 1129 CCMA. In this case, the residence of an employee was searched by the police without his consent, and the results of the unlawful search were used in a disciplinary hearing which led to his dismissal.

While at first glance it would not take a legal expert to surmise that such evidence would not be admissible in a criminal court, the consideration in respect of employment matters differs immensely.

The Commissioner held that where unlawfully obtained evidence is directly relevant and demonstrates misconduct that destroys the trust relationship, it may be admitted and relied upon in determining guilt and sanction. While the Commissioner conceded that in all probability such evidence would be excluded from the criminal trial of the employee, he shared his view that the Commission for Conciliation, Mediation and Arbitration (CCMA) is not a criminal court, and the question that faced him was very different from that of a criminal court.

He indicated that the contract of employment is a consensual contract between an employer and an employee which is based on trust. The enormity of the conduct (being theft of company property to the value of more than R20 000), as well as the effect that it had on the trust relationship, surpassed the test of relevance.

Admissibility of Recordings (of a Known Criminal)

In the matter of Sugreen and Standard Bank of SA (2002) 23 ILJ, an employee also attempted to rely on her fundamental right to privacy when her employer obtained recordings which implicated her in bribery transactions with a third party. Despite having a criminal record, the third party deemed it prudent to disclose the transactions to her employer when his bribes did not provide the sought after results.

The employee challenged the admissibility of the recording on several grounds including an alleged breach of her right to privacy, undue entrapment with the use of a third party, and that the credibility of the third party (having a criminal record) had to be considered.

It was however held that because the applicant used the company email and telephone in the misconduct, the company had a legitimate interest which did not breach her privacy. It was further held that there was no entrapment as the evidence did not sprout from her being entrapped into committing misconduct and that she wasn’t monitored over a period of time; rather, it was based on conversations held during working hours and recorded on a company phone. It was found that the evidence was sufficient to require an explanation from the applicant, and that the onus shifted which could then not be discharged.

Unlawfully Obtained Recordings

In Goosen v Caroline’s Frozen Yoghurt Parlour (Pty) Ltd & another (2) (1995) 16 ILJ 494 (IC), the Court considered whether recordings of conversations between the company and the chairperson of the disciplinary enquiry – which were unlawfully obtained by the applicant – were admissible.

When called upon to provide the minutes of the enquiry, the chairperson failed to do so, and only later provided minutes which were inconsistent with what the disciplinary hearing was about. The company argued that the recordings were unlawfully obtained and that the Constitutional Court had to decide on the matter as it pertained to a fundamental right to privacy.

The Court however found that the right to privacy as set out in the Constitution is limited by S 33(1)(a) to the extent that such limitation is reasonable and justifiable in an open and democratic society based on freedom and equality, and does not negate the essential content of the right in question. The Court further found that the Act made reference to ‘other courts’ in S 103(3) and that it is not a reference to courts of law only, but includes administrative tribunals such as the Industrial Court. The Court found that the test to be applied when determining the admissibility of evidence is whether it is relevant to the matters in issue rather than the manner in which the evidence was obtained. The only exception to this common law rule on admissibility is that the evidence must not be obtained under duress, and the accused cannot be obliged to give self-incriminating evidence.

When the recordings were allowed, it became apparent that the company had colluded with the chairperson who was biased in providing counselling, guidance, and supported propaganda to get rid of the employee.

Privacy Infringement

In Allied Workers Union of SA Obo Ncube v Northern Crime Security CC (1999), the Court considered admissibility of a recording made by a manager that captured an employee using abusive and threatening language. The manager responded in kind, however he only received a warning whilst the applicant was dismissed.

The recording was submitted to prove where the disparity in sanction sprouted from, though it was objected to by the union who deemed it to be inadmissible. The Court considered that the recording was reliable as it aligned with transcriptions. It was held that the recordings were not unlawful as they concerned direct conversations between the employee and the manager, not intercepted third-party communications. The purpose of the recording was also not to collect confidential personal information, but to verify threats made by the employee. It was also considered that the recordings were of communications conducted in the course of the working relationship and relevant to the misconduct, not part of systematic or malicious monitoring, and were limited in use to disciplinary and arbitration proceedings.

Ultimately, any potential privacy infringement was justified given the circumstances, the employer’s legitimate interest, and the nature of the threats.

CCTV Footage

In Rawu obo Segoale & another and Isowall SA (Pty) Ltd (2008) 29 ILJ 1791 (BCA), a private investigator engaged by the company secretly recorded employees making an unauthorised transaction concerning company goods. The employees were of the view that the video footage was in contradiction with their right to privacy in the absence of consent, and that the video was edited.

The Commissioner considered that video footage on its own may be considered hearsay, but that it is admissible if relevant, authenticated, and reliable. Corroborative testimony was also said to strengthen admissibility. The Commissioner was of the view that while it is correct that each citizen has the right to privacy as contained in the Constitution of the Republic of South Africa, the Constitution allows for the limitation of rights within certain parameters. In the employment sphere, the employer’s need to protect its business must be balanced against the employee’s right to privacy. He considered it common cause that the applicants were not only on the respondent’s premises but were also on duty at the time of the incidents. Furthermore, the applicants were also in the factory shop, which was considered to be a public place.

In Food & Allied Workers Union & others v Chapelat Industries (1989) 10 ILJ 552 (IC), it was also held that while video recordings are admissible as evidence in the Industrial Court on the grounds of relevancy, it should be borne in mind that such disputes are not on the same footing as in criminal cases or in general civil litigation. There is a high premium on speed and finality in the resolution of labour disputes, and the Industrial Court is bound to adjudicate disputes promptly.

It was the view of the Court that video footage should be considered against the background of its relevancy, but that time constraints may be a bigger concern. The Court considered that video recordings are admissible as evidence primarily on the basis of relevance to the issues in dispute. The Court did, however, deem it prudent that notice should be given to the registrar of the Court to establish facts of the video which are in dispute so as not to waste time.

Creating a Shift of the Evidentiary Burden

In Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2455 (LAC), a private search of an employee did not yield any results, yet Closed-Circuit Television (CCTV) footage was successful in showing that she had concealed company property without authorisation.

It becomes evident that searches that are consented to may not yield the same results as CCTV footage, which may not necessarily be consented to. In this instance, the Court did not consider CCTV footage as hearsay evidence but rather that it established a prima facie case of concealment. An element of dishonest intention on the part of the employee was therefore proved, which then shifted the evidentiary burden to her to present evidence that would exonerate her from blame.

Limiting the Right to Privacy

The approach of the courts does not necessarily do away with employees’ right to privacy, although the limitation of this right seems to be more easily circumvented in an employment context. The Bill of Rights does not provide unlimited rights which are mainly subject to their own inherent limitations, notwithstanding the limitation clause encapsulated in section 36 of the Constitution, which particularly indicates that:

“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including — (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

 Aside from the above limitation, it also becomes apparent that our courts also tend to consider the common law, in particular that the test to be applied when determining the admissibility of evidence is whether it is relevant to the matters in issue. The Court was for instance not concerned with the manner in which the evidence was obtained in the matter of Goosen v Caroline’s Frozen Yoghurt Parlour. The only exceptions to this common law rule on admissibility are that the evidence must not be obtained under duress and the accused cannot be obliged to give self-incriminating evidence.

Despite the above, entrapment does become an issue when employees are induced or enticed to commit offences. When a bona fide investigation results in employee conduct being exposed, it doesn’t necessarily mean that it was unfair entrapment. This was the case in SA Transport & Allied Workers Union on behalf of Assegai v Autopax (2001) 22 ILJ 2773 where a coach driver failed to exercise control over a ticket book. It was considered that at no stage did the investigator suggest that the ticket should be issued at a later stage, nor did he ask for a fraudulent ticket.

The balancing act of the right of privacy, the common law, and inherent limitation of certain fundamental rights accordingly becomes less daunting when the appropriate consideration is given to the relevance of evidence as dealt with in case law. It becomes clear that the chosen approach and the relevance of the particular evidence should be weighed up against the merits, the rights of the employee, as well as all appropriate means to obtain the evidence.