Brief Note on Whether Employers Can Monitor Workers’ Calls

1. Unfortunately the brief answer is that they probably can.

2. In the case of Protea Technology Ltd v Wainer 1997 JDR 0551 (W) (“Protea Technology”) the
High Court held that where telephone conversations are conducted at a business’s premises,
within business hours and using its telephone system, the content of all calls directly or
indirectly impacting upon said business may be recorded without violating the
constitutionally enshrined right to privacy.

3. According to the court, where an employee abandons the private sphere of a personal
conversation “for that of the affairs of his employer he loses the benefit of privacy.”

4. This poses the problem of how an employer could know that a discussion is about business
affairs and is not private. The court acknowledged this difficulty, but refused to address the
problem.

5. A business with a policy that its telephone lines were not to be used for private calls could
likely get around this problem.

6. The Protea Technology judgment precedes the enactment of two pertinent statutes, 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).

7. Unfortunately, it is likely that an employer could record and store their employees’ calls in
terms of RICA.

8. In terms of section 5(1) of RICA any person other than a law enforcement officer could
intercept any communication provided that a party to the communication has given prior
written consent to such interception. It would be incredibly simple for businesses to include
a clause allowing for the interception of all telephone calls in their employees’ employment
contracts.

9. Section 6(1) of RICA provides that any business may intercept any indirect ( that is not in
person) communication which involves a transaction entered into in the course of the
business, which otherwise relates to the business or which takes place in the course of the
business.

10. This wide ambit that would include most or at least many phone calls.

11. It could be argued, in a legal dispute, that private calls would be excluded from the scope of
the kinds of calls which could be ‘intercepted’ as these do not involve the business.
12. Unfortunately, if the business has prohibited the making of private calls or has indicated that
the phone line is not to be abused for making or receiving personal calls a plausible
argument could be made that these calls in fact relate to the business.

13. Section 6(2) of the RICA act stipulates that a business may only intercept or monitor
communications with the consent of the system controller ( who is likely to be an employee
of the business in any case) and for the purposes of trying to “establish facts”, for purposes
of investigating or detecting unauthorised use of the telecommunication system and for
monitoring communications to a confidential voice telephony or counselling service.

14. This may limit the scope of when an employer may monitor or record calls, to an
investigation into either the unauthorised use of the telecommunication system or to
establish other facts. The problem is that if a worker has given contractual consent to their
calls being recorded this would seem to override such a limitation.

15. A further requirement in terms of section 6 for the interception of communication by a

business is that the system controller must either obtain the express or tacit consent of the
person using the telecommunication system for the interception of communication or the
controller must take all “reasonable steps in advance” to inform the person whose
communications will be intercepted and monitored that this will take place.

16. POPIA regulates the recording and storage of personal information.

17. At least certain calls could conceivably include personal information such as a persons’ race,
opinions, views and preferences and could be either implicitly or expressly private.

18. Section 11(1)(a) of POPIA permits the processing (including the recording and storage of
personal information) if consent to do so has been provided and in terms of section 11(1)(b)
such consent may be withdrawn at any time.

19. Since POPIA came into effect on 30 June 2021, most employers have required their
employees’ to fill in forms consenting to their employer processing personal information.

20. A problem which workers would face with respect to the withdrawal of consent either to
monitoring and recording of calls or to the storage of their personal information is that this
could and often would lead to retrenchments.