Espionage: What if an employee uses his private cell-phone to take unauthorised photos inside the employer’s factory?
The reason for taking the photos could be quite innocent – or it could be sinister. The innocent reason could be that the employee simply wants to show his friends or family what his workplace looks like. The sinister reason could be to use the photos to copy the employer’s operating methods to set up shop in competition with the employer. Still more sinister, he could have been hired by a competitor to spy on the employer’s operations to provide information in return for a reward. This would amount to industrial espionage.
A business owner has the common law right to protect the trade secrets and confidential information relating to the business. This would include manufacturing processes which may have special features that make it unique – such as the lay-out of the production lines, or the methodologies or the ingredients, etc.
These become “trade secrets” and constitute a “protectable interest” which the owner has a right to protect. They’re also private property, which gives the owner the right to make rules on how employees and others must deal with them. But the employee’s cell phone is also private property – so too are its contents, such as the photos. The Constitution and other privacy laws protect this information as private and confidential.
So, can the employer demand that the employee hand over or delete photos of the workplace?
This situation arose in a case which went on review to the Labour Court and then to the Labour Appeal Court. The employee took photos of the employer’s production line with his cell phone. When the employer discovered this, it instructed the employee to delete them and to hand over the phone so it could make sure they had been deleted. The employee refused saying it was his private property and he was entitled to take photos with it.
Following a disciplinary inquiry, the employer dismissed the employee for failing to obey its instructions. The employee referred an unfair dismissal dispute to the bargaining council. The arbitrator ruled that the dismissal was fair on the basis that the employer’s instructions to delete the photos and to hand over the phone to check were reasonable.
The employee then took the decision on review to the Labour Court. He argued that the employer infringed his constitutional right to privacy and to lawful possession of his property.
But the Labour Court agreed with the arbitrator’s decision and dismissed the review. It said the right to privacy is not absolute in the employment context. The right to privacy must be balanced against the employer’s right to protect its business interests. It also found the employer did not infringe the employee’s right to possession of private property. This was because the employer did not intend to confiscate the cell phone – it only wanted it to check that the photos had been deleted.
Labour Appeal Court
The Labour Appeal Court agreed with the Labour Court and dismissed the appeal. It also noted that the arbitrator’s decision to confirm the fairness of the dismissal was reasonable because the employee’s conduct had resulted in a breakdown of the trust relationship with the employer.
Reference: NUMSA and Another v Rafee N.O. and Others (JR1022/12)  ZALCJHB 512;  2 BLLR 146 (LC) (31 May 2016)
Tip: Employers should include a clause in employment contracts to prohibit employees from using their private cell phones to take photos of confidential areas in the employer’s business operations. The clause should also empower the employer to conduct random checks of employees’ cell phones and the right to order that unauthorised photos be deleted.
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