When photographs on a private cell phone are not necessarily private
In 2016 an employee in the UK was dismissed because he had pornographic photographs on his private cell phone at work (Garamukanwa v Solent NHS Trust). A new Employment Appeal Tribunal (EAT) ruled that there was no breach of an employee’s right to a private life when his employer used emails and photographs obtained from his mobile phone by the police in the course of a criminal investigation, for disciplinary purposes.
Although an employee has a right to privacy in terms of the Constitution, that right is not absolute.
This principle was confirmed by the Labour Court in the matter of NUMSA & another v Rafee N.O. & others (JR1022/12)  ZALCJHB 512.
The employee, a driver and shop steward, had taken photographs of the company’s production line, shift machines and letter trays using his mobile phone. He was instructed to delete them and to confirm that he had done so. He refused to show the employer his phone, and when asked outright whether he had deleted the pictures, he replied saying, “No comment”.
His defence was that it was his private phone, that it contained his personal information, and that the employer had no right to look at his phone.
When he was dismissed following a hearing, he went to the CCMA where he denied that he had taken the pictures. The arbitrator confirmed the dismissal. Disagreeing with the award, the employee took the matter on review.
The court, per Lagrange J, dismissed the review on the grounds that the employee did not have the right to store information of a confidential nature (his employer’s operational processes) on his phone without his employer’s permission as that information belonged to the employer.
The court found that the taking of such photographs was similar to copying confidential plans relating to the company’s production layout before putting the said copies into his personal brief case. The court found further that the employee’s conduct impacted negatively on the employment relationship.
The importance of this judgment
The right to privacy is not absolute. In instances where an employee obtains confidential information relating to the organisation that employs him, and stores it without his employer’s permission on any device (or in any manner) that would otherwise be deemed to be private, that privacy is not protected, and he may be dismissed for misconduct.
Written by Hilda Grobler