With more South Africans working from home or shifting to a hybrid working model, both employers and employees are increasingly using messaging services such as WhatsApp to stay in contact. However, these services come with their own considerations, says Kavita Kooverjee, attorney at SchoemanLaw.
Kooverjee pointed to the Basic Conditions of Employment Act as an example which states that an employee may not work longer than 45 hours a week. An employee is also entitled to a daily rest period of 12 consecutive hours and a weekly rest period of 36 hours, which includes Sunday.
“Does this include not having to respond or be messaged during your non-working hours or days? It seems yes. Therefore an employee should not be expected to be available 24 hours a day to an employer and an employer should not feel free to contact employees whenever they want,” she said.
“But we all know emergencies do emerge, and sometimes communicating on WhatsApp can ease the situation very quickly. So using WhatsApp messaging for work does have some perks.”
Kooverjee added that the Cybercrimes Act, which was officially introduced in 2020, creates offences for threats to people, categories of people and property through data messaging. This also includes sending personal work data to people outside of work through WhatsApp.
“You need to be mindful of the content you share on your WhatsApp groups. One innocent joke can lead to a whole lot of legal issues. So be mindful of what you are sharing and to whom you are sharing this information,” she said.
Deleting and keeping messages
Employers and employees also need to be aware of sending work information over services such as WhatsApp and what it means in terms of confidentiality agreements and POPIA, as the law ‘technology agnostic‘ in this regard, said Karl Blom, senior associate at legal firm Webber Wentzel.
“There are not separate confidentiality requirements for email, SMS, WhatsApp or even oral communications. For that reason, depending on the terms of the contract with an employee or contractor, an employer or principal could require an employee or contractor to retain WhatsApp messages where those contain information relating to the business of the employer.”
This includes messages that are sent during the course and scope of that person’s employment or contract, said Blom.
“It is important to note that an employer’s right to access messages sent by an employer will be determined by a number of factors, including the terms of the employment contract or whether the employer is the owner of a device from which the message was sent.
“However, even if the employee owns the device from which a message was sent, an employer may be able to argue that an employee loses some privacy protections concerning a message where that message was used to engage in matters pertaining to the employer’s business.”
South Africans also need to be aware of messages that could not only land them in trouble at work but potentially also in jail.
Addressing a recent UCT webinar, specialist social media lawyer Emma Sadleir said that the Film and Publications Amendment Act now criminalises all forms of image-based violence and revenge pornography. In addition, the Cybercrimes Act criminalises threats to people, categories of people and property.
While it has long been established that posting harmful messages on social media can lead to legal issues, she noted that in some cases, sharing, forwarding, liking or failing to call out a harmful post could also lead to issues.
Sadleir said this is an important principle in South African law known as the ‘chain of the publication’. This means that if you were involved in sharing something, you are responsible for it, she said.