Workers’ privacy

I am a human resources officer in a private company. I am preparing a “Notice to Explain” to be issued to several employees. The employees are being investigated for making offensive, malicious and/or disrespectful statements against another employee, lewd conduct, and inappropriate behavior within the premises of the company.

The only pieces of evidence that I have, as the basis for the charges against the employees, are the written testimony of the person who reported the alleged incident, and screenshots of private conversations the alleged involved employees had through a web-based chat account.

Based on the time stamps of the messages, the messages were sent and received during break time. The employees being investigated also used their personal mobile phones, mobile numbers and internet service. Can the company use the screenshots as evidence against the employees under investigation? My concern is this might be a violation of the employees right to privacy. Thank you very much in advance. Jaimie

Dear Jaimie,

The privacy of employees in electronic communications is a complicated and still developing area of law in the Philippines. The case of Pollo vs. Constantino-David, et al. (G.R. 181881, 18 October 2011) can enlighten us on the matter.

In the Pollo Case, the Supreme Court of the Philippines held that the search made by the Civil Service Commission (CSC) in the office-issued computer of a public employee did not violate Section 2, Article III of The 1987 Constitution of the Republic of the Philippines, since it passed the twofold test: The employee cannot have any reasonable expectation of privacy under the circumstances; and the inception and scope of the intrusion made by the CSC was reasonable.

The employee who was under investigation failed to prove that he had an actual expectation of privacy either in his office or in the government-issued computer which contained his personal files.

The employer’s ability, however, to monitor messages sent or received through an employee’s personal, web-based chat account and using personal mobile phones, mobile numbers and Internet service, is more complicated. If the messages are from the employee’s personal phones, it is still a grey area since there is no direct jurisprudence or law governing the same.

Thus, it is best to take the more conservative approach and avoid accessing and/or using personal employee communication. Otherwise, the use of personal employee communication, without the employee’s consent, may lead to possible legal implications.

It is still good corporate practice, though, to make it known to all employees that the company has the prerogative to inspect their digital workstations, as well as company-issued phones / numbers, which are considered as extensions of the property of the company.

For the screenshots of private communication that you have, while the Bill of Rights of The 1987 Philippine Constitution could only be used against the State (and your employees cannot raise against your private company the defense of violation of their Constitutional rights against the government and its agents), your employees may have a cause of action for damages against your company for the obstruction, violation, or impairment of these rights under the Philippine Civil Code (i.e., privacy of communication).

Since the employees under investigation used their personal phones, numbers and internet services, and also sent and received the messages during their personal time, the screenshots cannot be used as evidence without the employees’ consent, otherwise, the company (and the person who provided the company with the screenshots) risk being charged with violation of privacy of communication. I hope this addresses your concern.