South Africa: Electronic Communications Abuse In The Workplace - Where Is Your Polic-E?

Internet access and e-mail are now common in the workplace. The benefits to be derived by companies are enormous. For many employees it is unthinkable that they will be able to perform their daily functions without these tools. The inconvenience caused when a company's email server goes down clearly demonstrates this point. Keeping in touch with some friends or doing some online banking are also clear benefits to employees. Online shopping and banking may also benefit the employer, as additional working time is not impacted by the employee being out of the office.

However there are always going to be employees who abuse e-mail, Internet and other communication tools. Sometimes this is not done intentionally. It can also happen that an employee uses the tools inappropriately due to a lack of education.

I don’t think that sending and receiving jokes is necessarily abuse. A good clean joke that has been selectively sent to me does wonders for my concentration. However a line between use and abuse should be drawn. Are your employees or consultants crossing the line?

Recently, there have been numerous examples of employees abusing email and the use of the World Wide Web. The stories seem to increase with every day that passes. To illustrate the point I relate various stories which have appeared in the press or in newsletters and some examples of my own.

• Spending hours on the web during working hours looking at websites totally unrelated to work is sometimes called cyberloafing. Anybody who's not tempted to cyberloaf just doesn’t know how much good stuff is out there and how much fun there is to be had. I personally have to restrain myself every day.
• The CCMA recently upheld the dismissal of an employee who received and forwarded racist emails. The email contained a picture of a gorilla with the superimposed head of Robert Mugabe. I received the email. Did you? The important question is what did you do with it once you had received it? Did you forward it?
• A junior lawyer from a London law firm forwarded a sexually explicit email that he received from his girlfriend. Due to the ease of forwarding emails, the email quickly circulated around London and is estimated to have reached about one million people.
• Disciplinary action was taken against numerous employees and 50 of them were suspended for email abuse.
• Ten employees of Royal & Sun Alliance in the UK were sacked for forwarding and viewing email attachments which depicted various characters from the Simpsons in sexual positions. I don’t know about you but I received these email attachments. I suspect I'm not alone.
• Six employees were dismissed from Cable & Wireless for the misuse of the company's e-mail system.
• In the United Sates an employee was sacked after it was discovered that the employee had sent 467 personal emails over the course of 40 days. Many of them also contained bad language.
• Orange sacked about forty employees who were downloading pornography from the Internet.

In the past I have received email in ALL CAPS. My immediate reaction is "WHAT'S YOUR PROBLEM?" Why are you SHOUTING? This reflects badly on both the sender and the company.

Email is not a good media to use to resolve conflict. Often the tone can be misread resulting in an even more hostile situation.

Viruses can be spread or hoax virus warnings circulated because employees do not recognise the kinds of emails to be wary of or how to check if a virus warning is a hoax.

An employee might unintentionally enter into a binding detrimental agreement on behalf of the company not realising that it was possible to do so by using email. An employee can easily send a friend proprietary or confidential business information.

The list of examples goes on and on.

The abuse or inappropriate use of electronic communication tools and the indiscriminate monitoring by a company without consent or sacking of employees without taking appropriate steps can have dramatic and serious consequences for the company.

Negative publicity and customer perceptions, low staff morale, an action for damages and increased management time to resolve legal disputes are some of the consequences of not implementing a clear policy on this tricky subject.

The best solution is probably a combination of the following.

Implement a clear written company policy dealing with the use of all electronic communications tools. Harty Rushmere have for a long time recognised this requirement and we have developed an Electronic Communications Policy ("ECP") specifically for this purpose which the firm makes available by way of a licence for a fee. Each employee should be required to read and agree to the policy.

Educate employees on the proper use of and risks involved with email and other communications tools which are provided to them. This can be done through workshop style presentations, which we are able to provide.

Use email and Internet monitoring software. However, the privacy rights of employees must be considered. According to South African law no monitoring is allowed until the employees have been informed and their consent has been obtained. Are you currently breaking the law?

The ECP is comprehensive, specifying the rules and guidelines employees should follow and the consequences of failure to do so. If necessary it can be tailored to suit your requirements.

Copyright 2000 Harty Rushmere Attorneys. All rights reserved.

This newsletter is for educational purposes only and must not be considered as legal advice. Your individual situation may not fit the generalisations discussed. Only your attorney can evaluate and advise you on your individual situation.