CCTV in a public change room

A client asked me:

My son belongs to Durban surf lifesaving club and they have 2 cameras in the boys’ locker room. Is this legal? He does not want to change in front of them and sometimes moves them and then gets into trouble. Please can you just give me a quick view of the law on this?

In South Africa, the right to privacy is protected both in terms of our common law and in section 14 of the Constitution.

Do companies (like Woolworths) have the right to install CCTV cameras in their shopping areas, or does this infringe on people’s rights?

In a recent High Court decision, involving Woolworths, a woman successfully sued Woolworths for damages, when she was stopped and her bag was examined (without justification) in full view of other shoppers, after a security officer at Woolworths saw what he thought was suspicious activity on the CCTV camera.

In the UK, companies need to display a sign indicating that surveillance cameras are in operation.

In SA, it seems that the general sentiment is that people don’t have a real issue relating to using CCTV when the cameras provide additional protection in public spaces against the extremely high levels of crime.

It’s very different when it comes to private places.

In certain locations, such as a public changing room, a person has a legitimate expectation of privacy. Whilst the lifesaving club has presumably installed the cameras to prevent theft, it is highly likely that the right of privacy outweighs the right of the club to conduct surveillance in a non-working environment.

In my opinion, the use of CCTV in a change room would constitute a breach of the son’s constitutional right to privacy.

It is one thing to erect a sign, giving notice to shoppers that they are under CCTV surveillance. Being informed is a key aspect to avoiding allegations of invading privacy. It is an entirely different thing to give such notice in a change room. In that environment, users have a legitimate expectation of privacy.

E-mail usage policy

Every employee has a responsibility to maintain your company’s image and to use emails in a productive manner and to avoid placing your company at risk.

To do so, you really should have an email usage policy in place, so that your employees understand that all messages distributed via your email system, even personal emails, are the property of your company. They must have no expectation of privacy in anything that they create, store, send or receive on your email system and that their emails can be monitored without prior notification, if you deem this necessary. If there is evidence that your employees are not adhering to the guidelines set out in the policy, your company reserves the right to take disciplinary action, including steps that may lead to an employee’s termination and/or legal action.

Email is a business communication tool and users are obliged to use this tool in a responsible, effective and lawful manner. Although by its nature, email seems to be less formal than other written communication, the same laws apply. Therefore, it is important that users are aware of the legal risks of emails that contain confidential or commercially sensitive information, or that may contain, defamatory, offensive, racist or obscene remarks, when you and employee can be held liable.

There are other risks: an email message may legally bind your company, contractually, in certain instances, without the proper authority being obtained, internally; email messages can carry computer viruses. If your employee sends an attachment that contains a virus, your company and the employee can be held liable; by opening emails and attachments from an unknown sender your employee may introduce a virus into the company’s  computer operations.

The policy would require the employee to use your email system for nothing other than legitimate business purposes. Therefore, the sending of personal emails, chain letters, junk mail, and jokes is prohibited.

Employees must only send emails that have content that could be displayed on a public notice board. If emails cannot be displayed publicly in their current state, they must consider rephrasing them, using other means of communication, or protecting information by using a password.

These are some of the issues that you should cover in an email user policy. Contact me if you need help in putting one together.

FLISP assists first-time homeowners and homebuyers

If you are a first-time homebuyer, did you know that you may qualify for a subsidy to buy your first home and save thousands over the period of the loan, by reducing the monthly repayments? The benefit also applies to homeowners who have already taken transfer.

What is FLISP ASSISTANCE?

Finance Linked Individual Subsidy Programme - FLISP

FLISP is the drive by the Department of Human Settlements to provide a subsidy to allow aspiring home owners to purchase a home, supporting your application to a bank for finance to buy your own home.

If you earn too little to qualify for mortgage finance to buy your own home, or you earn too much to qualify for the Government’s free basic house under their RDP Housing Subsidy Scheme, you may apply for the FLISP subsidy.

The once-off FLISP subsidy amount ranges between R20 000 and R87 000, depending on monthly income. The less you earn, the higher the subsidy. FLISP may be used for the following: - Buy an existing, new or old, residential property; Buy a vacant serviced residential-stand; or Build a residential property.

To qualify for the FLISP subsidy, you must meet certain criteria determined by the Department as well as the banks. It is available to all first-time residential homeowners (who have already taken transfer) or homebuyers (whose home loan has been approved by your bank) who earn between R3501 and R15000 a month.

The price of a property that can be financed through FLISP is determined by the joint household income, of not more than R15k per month.

Check out their website to find out more.

Medical Boarding - dismissal for incapacity

A visitor to my website asked: ‘We are in a position where we may have to medically board two staff members but cannot find sufficient information regarding this subject on the internet…’

One needs to consider Schedule 8 of the Labour Relations Act which sets out the procedure for medical boarding / incapacity. If you are considering getting rid of a staff member because of incapacity caused by ill health or injury, there are steps that you need to follow so that the employee doesn’t cry ‘foul!’ Contact me if you need guidance.

10. Incapacity: Ill health and injury

(1)  Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.

(2)  In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.

(3)  The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.

(4)  Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.

11.   Guidelines in cases of dismissal arising from ill health or injury

Any person determining whether a dismissal arising from ill health or injury is unfair should consider—

(a) whether or not the employee is capable of performing the work; and

(b) if the employee is not capable—

(i) the extent to which the employee is able to perform the work;

(ii) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and

(iii) the availability of any suitable alternative work.

Naming and Shaming on Facebook

Beware of publishing a post on Facebook or Twitter and other social media platforms, listing the name of a person (or company) that has committed some alleged transgression, to single them out for individual blame and censure.

What does our law say about, e.g., outing sex offenders and paedophiles, in a post?You ‘defame’ someone when you ‘publish’ a ‘defamatory’ statement about another living person. If you ‘like’ or ‘retweet’ a defamatory post on Facebook or Twitter, you could also be equally guilty of defaming the named and shamed person.

“Publish” takes the form of any form of communication, spoken or written, containing an allegation about someone that’s communicated to at least one other person apart from the person named.

“Defamatory” refers to any allegation that would tend to lower that person’s standing in the eyes of “right-thinking people”. 

There are defences to defamation, that protect freedom of speech and serve the public interest. Thus an allegation is protected if it both true and in the public interest. If it can be shown that the allegations of, say, being a sex offender, are true, the named person can’t cry foul.

If there are no defences, the publisher of a defamatory post could be sued for damages and, in certain instances, a court could order that the post be removed.

Think twice before naming and shaming someone on social media.