I run the sales division of a large company. I have been worried that one of my employees is just too successful.
He's go-getting and energetic, so perhaps my concerns are unfounded, but his ability to close transactions is almost 100%. Am I able to read his e-mails, or even hire a company that can monitor his calls? If he is trading favours for closing the deals, our company, which has an overseas listing, faces considerable business risk if anything he is doing could be construed as corrupt.
Yours faithfully, Apprehensive
Dear Apprehensive,
Your concern is laudable. As an employer, you are entitled to protect the proprietary interests of the company and you have a duty to ensure a safe and crime-free work environment for employees. But this must be achieved without unjustifiably infringing your employees' constitutional right to privacy.
The conflict between the protection of the right to privacy and an employer's rights and duties is regulated by the Regulation of the Interception of Communications and Provision of Communication-Related Information Act, 2002 (Rica). This act prohibits the intentional interception of communication subject to certain exceptions, a few of which apply to the workplace.
First, Rica permits interception of communication where one of the parties to the communication has given prior written consent to interception. Many employers require their employees to consent to employment policies that regulate the use of telephones, internet and e-mail at the workplace, and which specifically permit interception.
Second, Rica has a special workplace exception, which authorises an employer to intercept any indirect communication which takes place in the carrying on of the business and over the employer's telecommunication system.
Indirect communication is defined broadly in Rica, and would include telephone and e-mail correspondence.
You must get authorisation and you must advise your employees in advance that their communication on the system may be monitored and intercepted. You must also be sure that the purpose of the interception is legitimate.
If you are of the view that warning the suspected employee would prevent you from catching him red-handed, you could set a trap by pretending to be a customer. Because entrapment is such a tricky business, you should use it only as a last resort and seek the assistance of the police.
Consider too that simply advising your employees that their communication is being monitored for any illegal activity may well solve the problem.
I would also recommend educating your staff about corruption – the forms that it takes and the consequences of being caught engaging in it.
If your employee is granting any special favours for kickbacks, he may be doing so simply in ignorance of the law.
Take a stand and report corruption. This article originally appeared in The Sunday Times Business Times on 13 May 2012.
