Sep 10,2013 / News / Legal Brief

When an employer seeks to rely upon data obtained from a vehicle recovery device as supporting evidence of an employee’s misconduct, the employer must ensure that the data of such device is accurate and reliable.

COURT’S DECISION

In the recent Labour Appeal Court case of Sisonke Partnership t/a International Healthcare Distribution v National Bargaining Council for the Chemical Industry and Others (JA 51/10) [2013] ZALAC 16 (9 July 2013), the employee was dismissed for what is generally known as “ghost calling”. This is the dishonest practice of a salesperson falsely reporting visits to customers. The employer had previously entered into a contract with Netstar, which entailed the placing of vehicle recovery devices in the company’s motor vehicles to monitor employee whereabouts. Upon discovering discrepancies between the employee’s weekly report and the tracking data, the employer confronted the employee who failed to provide an explanation to the satisfaction of the employer.

During proceedings before the Commission for Conciliation, Mediation and Arbitration (“CCMA”) the developer of the Netstar Vehicle Recovery System testified that the device did not continually detect the vehicle’s movement due to obstructions or lack of network in certain areas where the monitored vehicle was travelling or was stationed. Of particular significance was the fact that the tracking device could not trace the vehicle at some of the areas that it was common cause she visited that day.

The Labour Appeal Court accepted that the device used in this instance was not a vehicle tracking device but one used for the recovery of a vehicle and that it lacked satellite and GPS capabilities.

The court held that the device could not be solely relied on by the appellant to show that the employee had been ghost calling. The employee’s dismissal was held to be unfair.

IMPORTANCE OF THE CASE

Employers who chose to monitor the movements of its employees by means of tracking devices should ensure that devices are highly reliable before relying on the tracking data as evidence against the employee. Such a device and the data it provides will be carefully scrutinised by a court before being accepted. The same is true of any automated system utilised by employers, such as access control systems.