Impact of POPI and RICA on Labour Law

Introduction

In terms of section 14(d) of the Constitution, everyone has the right to privacy and not to have the privacy of their communications infringed. To this effect, our legislature has developed several pieces of legislation that give effect to the right to privacy, most notable in the form of the Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002 (“RICA”) and the Protection of Personal Information Act 4 of 2013 (“POPIA”). With the development of our law and technology, and personal information becoming increasingly available on public platforms, it is crucial for employers to ask: Can you record a meeting, disciplinary inquiry or any other incident within the workplace without infringing the rights of individuals and juristic people?

POPIA

POPIA has been implemented to protect personal information of individuals when it is collected by public parties. In terms of POPIA, personal information is defined as any information which relates to a natural or juristic person which includes physical address, name, email address, date of birth, ID number, race, gender, criminal history, financial history, personal opinions, trade union membership and beliefs. POPIA further defines processing as the handling of such personal information, including recording, collecting, storing, updating or distributing, which could only be done by a designated officer who is authorised to handle such information in compliance with the legislation.

An employer appoints employees and is required to collect and store certain information relating to such employees. The employer is obligated in terms of POPIA to collect personal information from the employees directly and to further store such information in a protected and specific manner to maintain the privacy of such employees and uphold the trust relationship between the employer and employee. An employer is further required to uphold the rights and privacy of its employees; therefore, any recordings of audio or video nature are also required to be handled in compliance with legislation within South Africa.

RICA

RICA has been implemented to regulate the interception of communication, regardless of it being verbal or written, in South Africa both by Government and privately amongst individuals. In terms of section 4(1) of RICA, any person may intercept communication if they are a party to such communication. Further, and in terms of section 5(1), any person may intercept communication if they obtain the consent of the parties involved. No person is allowed to intercept communication if they are a third party to such communication without the consent of either party involved in the communication. RICA strictly prohibits the interception of communication for purposes of committing a criminal offence. Section 42(1) prohibits the disclosure of information obtained by anyone in the exercise of his/her duties. Section 6(1) of RICA provides that any person may intercept communication in the course of carrying on their business if it is: entered into in the course of business and relates to the business, or occurs during the carrying on of business. The current position remains that any party to a conversation may record such conversation without the consent of the other participants, unless such recording is for an unlawful purpose or of a third-party conversation.

Recording workplace communication

Even though certain sections of RICA have been declared unconstitutional, it is still applicable to recordings, and it is therefore legal to record a conversation to which you are a party, regardless of the format of the meeting, and if the purpose of such recording is not to commit a criminal offence. Conversely, you may only record third-party communication with the consent of the parties involved. It remains illegal to record communication to which you are not a party, even if it is conducted in a public domain and you overhear such communication.

It is a common practice for employers to have surveillance cameras on their premises for security purposes. As a matter of best practice, employers are required to notify the employees of the surveillance cameras, that these cameras are actively recording, and that the employee’s behaviour is being monitored. An employer is required to notify its employees, either by means of a clause in their contract of employment or implementation of a policy, that communication (audio or video) within the workplace will be recorded, monitored and could be used for evidence purposes. It would consequently be advisable for employers to implement a policy regulating the recording of communication in the workplace. Should an employer implement a policy regulating recording of communication and handling thereof, then all employees within such a workplace may be bound by this policy and can be sanctioned for misconduct for failure to adhere to the policy.

Admissibility of audio recordings in the workplace

Employers and employees often rely on video recordings, voice recordings and message conversations as evidence during a disciplinary inquiry or matter at the CCMA/Labour Court. The admissibility of such evidence is dependent on several factors, including the relevance and authenticity of the evidence, the chain of custody (origin of the recording to be verified and a witness testify to this effect), the integrity of the recording, and the probabilities of the evidence having been tampered with. The admissibility of such evidence is determined on a case-by-case basis, having regard to legislation, merits, case law, nature of the proceedings, nature of the evidence presented, purpose for which it was tendered, prejudice that could arise on admissibility of such evidence, and the interest of justice. Several examples of the former considerations have arisen in our case law over the years. For example, in the matter of Sedibeng District Municipality v South African Local Government Bargaining Council and Others (2012), an employee submitted a voice recording to prove an unfair dismissal claim, and the employer objected to the evidence, arguing that he did not consent to the recording. The court admitted the evidence on the basis that labour disputes require a flexible approach to evidence and that the factors determining the admissibility of evidence must be considered in its entirety.

Conclusion

In conclusion, while employers in South Africa are allowed to record communications within the workplace, the practice is governed by stringent legal frameworks, namely the Protection of Personal Information Act (POPIA) and the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICA). It is essential for employers to ensure they are complying with these laws, particularly in terms of obtaining consent, maintaining transparency, and safeguarding personal information. As the workplace evolves with advancing technology, implementing clear policies regarding recording communications and the use of surveillance is critical to avoiding legal pitfalls and maintaining trust between employers and employees. Admissibility of recorded evidence in legal proceedings further underscores the need for proper handling, authentication, and transparency in the use of such recordings. Ultimately, balancing the right to privacy with the need for effective workplace management and evidence collection remains a crucial responsibility for employers.