The use of CCTV video footage in the workplace
Can an
employee rely on Close Circuit TV (CCTV) evidence in a dismissal hearing?
The crisp
issue is this: is it a requirement for employers to make
employees aware that they are being monitored by means of security cameras and
that certain proceedings in the workplace may be recorded, such as a
disciplinary hearing.
I've
often appeared at the CCMA and other tribunals in matters where a culprit was filmed stealing,
on CCTV. The question of whether or not the employer was entitled to use the
camera in the first place was never been raised as an issue at any of those
hearings. It was assumed (perhaps incorrectly) that the employee had been
advised of the fact that cameras were placed at strategic places, for
monitoring purposes, or that notice was unnecessary. No employee has ever taken
the point.
The Constitution of the Republic of
South Africa of 1996 protects privacy in Section 14:
Everyone has the right to privacy,
which includes the right not to have—
(a) their
person or home searched;
(b) their
property searched;
(c) their
possessions seized; or
(d) the
privacy of their communications infringed.
The South African Constitutional Court
has defined ‘privacy’ as the ‘right of a person to live his or her life as he
or she pleases’.
Over the years, the courts also
recognised unreasonable intrusions into the private sphere as actionable:
bugging a person’s room, listening to private telephone conversations; spying
on someone while she was undressing, reading private documents, unauthorized
blood tests and harassment fell into this category. Certain unreasonable
intrusions into the private sphere were recognised by the courts as being
sufficiently serious to warrant liability for criminal invasion of
privacy, in the form of crimen iniuria.
I
would argue that whilst an employee may be aware that CCTV cameras exist, this
will not justify an employer using CCTV footage during a disciplinary process
if the employee was never told the footage could be used for that
purpose.
Ideally,
an employer should have policies in place relating to email/internet/phone usage and
the right to monitor staff, via CCTV.
CCMA
arbitrators and other tribunals accept videotaped evidence as valid and
reliable because:
·
It does not suffer from fading memory as may the
testimony of human witnesses;
·
It provides a more accurate
and clear picture than a human being.
·
The camera retains not only the words
but also the non-verbal communications of those on camera.
Begging
the question as to whether or not the employee, in the first instance, knew and
consented to the fact that his actions may be monitored on video, to be
acceptable, amongst other things:
·
The videotape must be clear. This means that
visuals and audio must be sharp.
·
The video must be authenticated. In addition to the
tape being clear, it must be shown not to have been tampered with in any way.
·
It must also be proved that the visuals and audio
accurately reflected the incident in question and not some other incident.
·
The evidence provided by the videotape must not be
hearsay and must not be contradicted by other evidence.
·
The video should not be part of an illegal
entrapment exercise.
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