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In Article Archive, Members by Barney JordaanLeave a Comment

Just about every person who has access to e-mail has received a joke of a racist or sexual nature. Employees tend to distribute these with gay abandon, within and outside the workplace, without pausing to consider how the recipient might feel about the matter.

Very few people would object to a touch of humour in the workplace. A harmless joke at the right time can be a refreshing distraction in the work environment. But the potential abuse of electronic communication means that its regulation and management are important.

In the CCMA case of Singh and Island View Storage Ltd, an employee was dismissed for distributing a sexually explicit e-mail to three colleagues. He knew it was against the company’s policy to do so, but challenged the company’s consistency in dealing with this type of transgression. He also felt that dismissal was too harsh a penalty.

The commissioner accepted that there was a practice of sending e-mails and pictures that were not work-related on the company’s intranet. However, the employee’s intentions were an important consideration. The commissioner found that the e-mail had not been sent as a harmless joke, but that the employee had sought to cause embarrassment and harm. During the disciplinary hearing he showed no remorse or even awkwardness about his conduct. Dismissal was found to be a fair sanction in this case. However, the case does not mention what the outcome would have been if the employee genuinely believed that the e-mail was harmless.

E-mail jokes with sexual innuendo are commonplace. The degree of offensiveness varies, as does the sensitivity of different employees. Unfortunately, the joker often fails to realise that what he or she considers funny might be extremely offensive to other people. Whilst the use of the internet and e-mail is a powerful and useful tool in the workplace, the above-mentioned case illustrates the problems that it might cause.

The importance of having a policy or rules to regulate the use of electronic communication in the workplace goes much further than preventing the distribution of dirty jokes and racism. Wasting of productive time, possible contractual and other legal liability, spreading of computer viruses, overloading and slowing down the system must be considered. Employers who do not have such policies or rules or do not enforce them are at risk of being held liable, not only by employees, but also by third parties that seek to hold the employer vicariously liable for his/her employees' acts or omissions.

How far can one go in attempting to prevent abuse? The first measure that comes to mind is that of monitoring electronic communication in the workplace. Unfortunately this is no simple matter. Firstly one should attempt to obtain the consent of employees to avoid an objection based on an invasion of privacy. But even if employees consent to their e-mail and use of the internet being monitored, the “big brother” approach is likely to negatively influence morale and productivity. There is also the question of whether consent alone can justify the invasion of employees' privacy, as there are constitutional and other legislative provisions to be taken into consideration.

The best approach is to carefully consider the organisation's need to protect its interests, establish rules that are designed to protect those interests and introduce measures that differentiate between business and private use of electronic communication.

As in all employment-related matters, employees' knowledge and understanding are of paramount importance. This applies not only to the policies and rules, but also to the rationale for those policies and rules. For example, all employees, including the e-mail prankster, must know that:

  • his or her access to e-mail and the internet is primarily for business purposes
  • he or she must respect other employees’ dignity
  • he or she may not distribute unsolicited e-mails and the risks involved, and
    it is important that e-mails on the employer’s system may be monitored (As mentioned before, it is preferable that an agreement to this effect should be obtained)

Even where the employer allows employees to make use of private e-mail addresses, it should be subject to certain clear conditions to prevent abuse.

Policies and rules pertaining to electronic communication should be determined by balancing the interests of the employer with the rights and needs of the employees. It is not a matter of “one size fits all”. Policies and rules must be relevant to the circumstances, such as the nature and size of the business.

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