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.