The employee's right to privacy versus the employer's right to monitor electronic transmissions from the workplace.
Privacy is important because it represents human dignity or the preservation of the ‘inner sanctum’. Due to technological developments the operational concerns of employers are continuously threatened or challenged by the employee’s right to privacy in the workplace. It is common knowledge that employees all over the world are exposed to numerous privacy invasive measures, including drug testing, psychological testing, polygraph testing, genetic testing, psychological testing, electronic monitoring and background checks. The issue at the heart of this dissertation is to determine to what extent privacy is protected in the South African workplace given advancements in technology and the implications (if any) for the right to privacy. A secondary aim of the dissertation is to attempt to provide a pragmatic balance between the privacy concerns of employees and the operational needs of employers in this technological age. This dissertation mainly focuses on the invasion of privacy in the workplace through the monitoring of focus areas of email, internet and telephone correspondences of the employee. To provide an answer to the research issue discussed above, this dissertation addresses four ancillary or interrelated issues. First, the broad historical development of the legal protection of privacy is traced, examined and a workable definition of privacy is identified with reference to academic debate and comparative legislative and judicial developments. Secondly legislation on the regulation of monitoring in the workplace is critically examined and discussed. Thirdly, those reasons and practices, which threaten privacy in the employment sphere, are identified and briefly discussed. More specifically, the dissertation considers how these reasons and practices challenge privacy, the rationale for their existence and, if applicable, how these reasons and practices may be accommodated while simultaneously accommodating both privacy and the legitimate concerns of employers. Fourthly, a detailed evaluation of the case law and judicial developments of South Africa on the right to privacy in the workplace are examined so as to seek a balance if any between the employee’s right to privacy and the employer’s right to monitor. To successfully tackle the above issues the dissertation uses the conventional legal methodology associated with relative legal research, which includes a literature review of applicable law and legal framework and a review of relevant case law.