by May 14, 2024Employment

In last week’s Top Tip Tuesday (which can be found here, we discussed the way in which the right to privacy in the employer/employee relationship was assessed by the Labour Appeal Court in the matter of Enever v Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd (JA 86/22) [2024] ZAL AC 12 (23 April 2024). In that case, the court held that the consumption of cannabis after hours by the employee fell within the scope the employee’s right to privacy.

The Labour Court was again required to consider the scope of the right to privacy within the employer/employee relationship in the matter of SACCAWU obo Dlamini v Commission for Conciliation, Mediation and Arbitration & Others (JR 2281/21) [2024] ZAL CJHB 180 (29 April 2024).

This judgment is being referred to as the “lemon juice judgment” (much like the “Mamas Pies judgement” about 20 years ago).

In this matter, the employee was charged and dismissed for unlawful removal of company property (lemon juice) without approval or authorisation.

The circumstances are extremely interesting. The employee apparently took an empty bottle and went to the bakery section of the supermarket. When he returned from the bakery section, he was apparently carrying a bottle with something inside. The employee went through the security checkpoint, where he was searched, and then went outside. The security guard apparently became suspicious of the substance contained in the bottle and reported this to her supervisor. The security guard and her supervisor both went to the parcel counter, where the employee had left his bag. The parcel counter is situated within the store. The supervisor took the employee’s bag from the parcel counter and searched it. Apparently, the security guard, the supervisor and a manager tasted the contents of the bottle, and they concluded that the substance was lemon juice. The search of the employee’s bag at the parcel counter and the tasting of the substance in the bottle, happened in the absence of the employee.

After being charged, the employee was dismissed, and his dismissal was upheld at the Commission for Conciliation, Mediation and Arbitration (CCMA). The employee, through his union, SACCAWU, took the decision of the CCMA on review to the Labour Court.

For the purposes of this article, it is not necessary to go into the evidence that was led by the supermarket (employer) regarding the “lemon juice”. What is important however is the way in which the court assessed the right to privacy regarding the search of the employee’s bag at the parcel counter, and the subsequent tasting of the content of the bottle, in the employee’s absence. The Labour Court held “the investigation, which involved taking and searching the employee’s bag without his authorisation or permission and in his absence was, in my view, not only clumsily and poorly conducted, but it also violated the employee’s fundamental right to privacy enshrined in the Constitution”.

What is clear from this judgment, and various other judgments of the Labour Court and the Labour Appeal Court, is that an employee’s right to privacy is being taken extremely seriously by the Labour Court and the Labour Appeal Court.

Employers must take note of this approach in the recent judgments, when implementing disciplinary codes and procedures – the right to privacy should be emphasised in the disciplinary codes and procedures. Just as importantly, employers must train key personnel, such as security guards, on how to properly carry out searches of personal belongings, to avoid situations where, despite there being good evidence available to support the charges against an employee, this is undermined because of a breach of an employee’s rights to privacy as enshrined in the Constitution.