Know when to play on Twit­ter

The Sunday Mail (Zimbabwe) - - HEALTH - Tichawana Nyahuma Le­gal Mat­ters Tichawana Nyahuma is a re­searcher and a lawyer who writes in his per­sonal ca­pac­ity. Feed­back: nyahuma.t@gmail. com

(Con­tin­ued from last week) THE pos­ses­sion and use of com­mu­ni­ca­tion de­vices at the work­place will in­evitably im­pact on em­ploy­ment re­la­tion­ships and ac­cord­ingly, some ques­tions arise:

1. Is it law­ful for em­ploy­ers to con­fis­cate em­ploy­ees’ cell­phones at the be­gin­ning of the day and then re­turn them at the end of the day? In other words, is such con­duct not an in­fringe­ment of the em­ploy­ees’ rights as given to them by Sec­tion 61 of the Con­sti­tu­tion?

2. Where the em­ployer does not, in fact, con­fis­cate cell­phones, are em­ploy­ees at large to en­joy use of their cell­phones willy-nilly dur­ing work­ing hours?

3. If em­ploy­ees are sta­tioned in of­fices where they use com­put­ers, does that give them the free­dom to go on Face­book and other such so­cial me­dia plat­forms as they wish?

In my view, it all de­pends on the na­ture of the job.

For in­stance, if one is a bus con­duc­tor, there is no jus­ti­fi­able rea­son to re­strict such a per­son’s use of his cell­phone.

The same can­not, how­ever, be said of a per­son who works at the front of­fice or any other re­cep­tion area fre­quented by large num­bers of peo­ple re­quir­ing at­ten­tion. Can you imag­ine a till op­er­a­tor in a large shop talk­ing on the cell­phone or play­ing on Face­book while cus­tomers wait to be served?

In cases like that, the em­ployer can and should im­pose con­di­tions in the con­tract of em­ploy­ment pro­hibit­ing such. Some em­ploy­ers go so far as to ban pos­ses­sion of cell­phones on one’s per­son dur­ing work­ing hours.

Some­times, the con­di­tion may not be in the con­tract of em­ploy­ment it­self. It may be con­tained in the col­lec­tive bar­gain­ing agree­ment or the code of con­duct.

Per­sons em­ployed in en­vi­ron­ments where they nec­es­sar­ily have to use the com­puter and have ac­cess to the In­ter­net can very eas­ily spend hours of pro­duc­tive time on Face­book or Twit­ter.

In cer­tain cases, se­cu­rity is para­mount and em­ploy­ers are legally en­ti­tled to im­pose ap­pro­pri­ate con­di­tions lim­it­ing or al­to­gether pro­hibit­ing pos­ses­sion and use of In­ter­net-ac­cess­ing de­vices by em­ploy­ees.

In an ef­fort to cur­tail the use of so­cial me­dia at the work­place, some or­gan­i­sa­tions in South Africa now have com­puter soft­ware that de­tects the time spent on so­cial me­dia dur­ing work­ing hours.

The soft­ware will, at the end of the month, re­lay that in­for­ma­tion to the salaries de­part­ment and a por­tion of the erring em­ployee’s pay pro­por­tion­ate to the wasted hours is de­ducted.

So while the Con­sti­tu­tion gives cit­i­zens/em­ploy­ees cer­tain rights, those rights are not un­lim­ited. Sec­tion 86 of our Con­sti­tu­tion ac­tu­ally talks to those lim­i­ta­tions.

The idea be­hind the lim­i­ta­tions is mainly to en­sure that he who ex­er­cises any right as granted by Sec­tion 61, should not do so if by ex­er­cise of that right, he in­fringes on the rights and free­doms of oth­ers.

In par­tic­u­lar, Sec­tion 86(2)(b) states: “The fun­da­men­tal rights and free­doms set out in this Chap­ter may be limited only in terms of a law of gen­eral ap­pli­ca­tion and to the ex­tent that the lim­i­ta­tion is fair, rea­son­able, nec­es­sary and jus­ti­fi­able in a demo­cratic so­ci­ety based on open­ness, jus­tice, hu­man dig­nity, equal­ity and free­dom, tak­ing into ac­count all rel­e­vant fac­tors, in­clud­ing the pur­pose of the lim­i­ta­tion, in par­tic­u­lar whether it is nec­es­sary in the in­ter­ests of de­fence, pub­lic safety, pub­lic or­der, pub­lic moral­ity, pub­lic health, re­gional or town plan­ning or the gen­eral pub­lic in­ter­est.”

In con­clu­sion, it is per­ti­nent to high­light that every em­ploy­ment re­la­tion­ship is bound by a con­tract — oral or writ­ten.

Once the con­tract comes into ex­is­tence, the em­ployee gives up cer­tain rights for par­tic­u­lar times.

If the con­tract says the em­ployee be­gins work at 8am and knocks off at 4:30pm, it means that the hours in the in­ter­ven­ing pe­riod be­long to the em­ployer, ex­cept cer­tain breaks such as tea and lunch time.

The em­ployee may not, dur­ing work hours, en­gage in per­sonal ac­tiv­i­ties with­out the em­ployer’s ex­press or im­plied author­ity. Those per­sonal ac­tiv­i­ties in­clude us­ing so­cial me­dia for un­rea­son­ably long hours to the ex­tent that it may be classed as “theft” of the em­ployer’s time.

It is not in all cases that use of so­cial me­dia at the work­place is un­law­ful and no sanc­tions should visit any em­ployee in cir­cum­stances were their use does not in­ter­fere with du­ties.

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