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.

The low down on lawful evictions – PIE explained

Housing is a vital and primary need for each person. As most of us acquire accommodation by lease or through home loans or even through state housing provided by municipalities, it is important to know your rights and what the correct procedure is for lawful evictions.

With the exclusion of farm land, lawful evictions from residential premises, buildings or structures thereon, which includes any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter, is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, commonly known as the PIE Act.

Who has a right to evict?

The right to evict under the PIE Act is given to a registered owner of premises or to a person in control of the residential premises in question. Persons in control of residential premises include:

• A lawful tenant
• The executor administrating the estate which includes the premises
• Any other agent acting on the lawful instructions of the owner

Who can be evicted?

People who can be evicted include the following people who remain in occupation of the premises:

• Defaulting tenants whose lease agreements are terminated
• Defaulting mortgagors whose bonds were cancelled and property sold in execution
• Unlawful occupiers and squatters
• Any other person who does not have the express consent of the owner or person in lawful control of the premises

What are the special considerations?

When dealing with eviction applications our courts are obliged to give special consideration to the elderly, children, people with disabilities and also households headed by women. All facts and circumstances of such persons must be highlighted to the court for the evaluation of such special considerations.

Lawful eviction procedure:

Step 1 - Eviction notice/demand

An eviction notice or demand serves to warn the occupant of the intended eviction and it usually provides the occupant 30 days to vacate the premises. It also affords parties the opportunity to negotiate settlement terms or terms and timeframes for vacating the premises. This letter may be served by the Sheriff of the Court, by hand at the premises or by registered post.

Step 2 - Court application for eviction

A court application by way of a notice of motion with a supporting affidavit must be served by the Sheriff on the occupant and on the relevant municipality. This will set out the court appearance date and the dates when the occupant must file their opposing court papers if they intend to oppose the eviction application. The occupant must receive the court application papers at least 14 days before the court date.

Step 3 - Appearance in court for hearing of eviction application

A Court is obliged to consider all relevant facts relating to the eviction application at the appointed dated for hearing the application. Legal representatives of the parties will be afforded an opportunity to present oral and written legal arguments on behalf of each respective party. The Court will then through a Court Order, if the application is successful, provide the occupant sufficient time to vacate which is ordinarily up to 1 month with a provision that should the occupant fail to vacate in that period, the Sheriff is authorized to remove the occupant and all belongings from the premises at the costs of the occupant.

Step 4 - Forced eviction of occupant by Sheriff

The Sheriff will first serve a copy of the Eviction Court Order on the occupants. The Sheriff will then usually be authorized to forcefully remove the occupants after the vacation date appointed by the court has lapsed. The Sheriff may also be authorized to obtain the assistance of the police where necessary and he may also be authorized to remove the belongings of the occupants including to demolish any erected structures. The Sheriff may take up to 3 weeks to execute the eviction Court Order after making necessary arrangements to evict the occupants.

Conclusion

Lawful evictions can take between 2 to 3 months to be concluded and they can become technical and even costly. A landlord, owner or a person in control who wishes to evict, and a tenant or occupant against whom eviction processes are being commenced, are in both instances advised to seek legal advice from an attorney specialising in evictions to ensure that the eviction process is lawful and carried out correctly. Following the correct lawful eviction procedure minimizes frustration, costs and potential further rental losses and avoids the need for conduct like changing locks, disconnecting utilities and even intimidating conduct, which in itself can result in legal action being taken by unlawful occupants against owners or landlords.

Dispute resolution definitions

There are a number of other dispute resolution procedures that can be used as an alternative to litigation. The most common of these are arbitration and mediation.

Des Williams, the head of the litigation department at Werksmans provided the following definitions.

Arbitration and mediation are fundamentally different processes for resolving a dispute. The object of arbitration is for the arbitrator to resolve the dispute between the parties in accordance with their legal rights.

Mediation, in its wider sense, is a voluntary procedure in which the mediator assists the parties to arrive at an agreed resolution of the dispute, particularly in situations where the parties wish to maintain an ongoing relationship.

The most important feature of arbitration is its consensual basis, which makes it a particularly flexible procedure. The parties can adapt the procedure, taking into consideration the nature of the dispute as well as the amount at stake.

There are a number of organisations which facilitate the running of arbitrations. On a domestic level these include the Arbitration Foundation of Southern Africa and on an international level the London Court of International Arbitration and the International Chamber of Commerce. These organisations are responsible for the administration of arbitrations and are also often responsible for the appointment of the arbitrator.

Condonation for delays in referring matters to the CCMA

Time limits:

•Unfair dismissal disputes must be referred to conciliation within 30 days of the date of dismissal;

•An unfair labour practice dispute must be referred within 90 days of the unfair act or omission;

•A request for arbitration must be made within 90 days of the date on which the dispute remained unresolved after conciliation; and

·  An unfair discrimination dispute must be referred within 6 months of the discriminatory act.

If you are even 1 day late, you have to apply to the CCMA for ‘condonation’ on ‘good cause’ shown. You need to file an affidavit that is signed before a Commissioner of Oaths., explaining why you delayed submitting the dispute in time. The commissioner that hears the application for condonation must be satisfied that you have a good reason, otherwise he or she will not accept (condone) a late referral.  

Time frames in the LRA are calculated by using calendar days. This means that all days are counted including Saturdays and Sundays and public holidays. For example, the thirty-day period is counted by excluding the first day and including the last day.

However, in terms of the Interpretation of Statutes Act, if the last day falls on a Sunday or public holiday, this day is not counted. For example, if the last day falls on 16 June – a public holiday – the last day of the 30 days becomes 17 June.

The application must be done in an affidavit in which you must set out:

•The period of the delay;

•The reason for the delay;

•Your prospects (or chances) of succeeding in your claim of unfair dismissal;

•Any prejudice (negative impact) to the other side; and

•Any other relevant factors.

A CCMA commissioner will then decide whether or not “good cause” exists to grant condonation.

Sometimes, it is only at the conciliation stage where the parties or commissioner finds that the dispute was referred late. If this happens, the commissioner may give the parties’ time to prepare argument and thereafter immediately hear both parties before making a decision regarding condonation. Alternatively, the commissioner may direct the employee to submit a written condonation application. This may happen if the referral form states the wrong dismissal date. If this was done deliberately to avoid applying for condonation, it could count against the employee in the condonation process.

Sometimes, it is only discovered at arbitration that the original conciliation application was late. Also, there was no earlier condonation application and ruling that grants condonation. In such cases, the Labour Appeal Court has held that where the CCMA has issued a certificate of non-resolution at conciliation and such certificate not been reviewed and set aside, the CCMA can arbitrate the dispute.

This court decision prevents the raising of technical points to avoid arbitration where a party did not use an earlier opportunity to raise the defect.

Can I claim for damages if I slipped and broke my ankle?

What is the test for negligence?

In the case of Klassen v Blue Lagoon Hotel and Conference Centre the court had to decide if a hotel was negligent. The plaintiff sued the defendant hotel for damages suffered by him when he slipped and fell in the defendant’s bathroom as a result of which he sustained an injury to his ankle.

The defendant disputed liability, alleging that the plaintiff was drunk at the relevant time. It also relied on a disclaimer notice to guests, indicating that the hotel would not be responsible for any personal injury to guests whether such injuries or loss were sustained by the negligent or wrongful act of anyone in the employment of or acts on behalf of the defendant.

The Court was satisfied on the evidence before it, that the plaintiff had injured his ankle when he slipped and fell in the defendant’s toilets. It also accepted that when the plaintiff checked in at reception, he completed and signed a registration card and that the said card contained the exemption clause relied on by the defendant. Furthermore, the disclaimer notices were displayed at the motor vehicle entrance and the guardhouse.

The test for negligence is whether a reasonable person, in the same circumstances as the defendant, would have foreseen the possibility of harm to the plaintiff; would have taken steps to guard against the possibility; and whether the defendant failed to take those steps. The evidence established that the defendant had a properly functioning cleaning system in place, and that it took reasonable precautions in ensuring that the toilet facilities were kept in a clean and dry condition and that they did not pose a danger to its guests. Finding no negligence, the Court dismissed plaintiff’s claim.