POPI ACT

“Confidentiality in the workplace is rule number one in the book of business etiquette”. With the POPI Act an active topic recently in the HR field, this creates a chance for employers and their employees to show customers, clients a level of common courtesy by protecting their data. It is also part of the business’s role to fulfil its legal responsibility to prevent sensitive information from being leaked or disclosed to the wrong parties. Confidentiality is important for legal and reputational reasons and it also matters because your future employment as an employee may depend on it.

In order to maintain the employment relationship, both the employer and the employee are by law responsible for particular issues. Any behavior that is not in line with those issues can lead to the termination of the employment relationship.

The employer’s legal duties:

Receive the employees to service them by providing the employees with a written employment contract, as well as granting and notifying them of their rights in terms of labour legislation.

  • Give employees with work.
  • Remuneration of employees for work done.
  • Provide safe and healthy working conditions.

The employee’s legal duties:

  • “Render services.
  • Perform according to the reasonable, lawful and attainable work performance standards set by the employer in terms of quality and quantity.
  • Always act in good faith, be loyal and have the employer’s best interest at heart. This is known as the employee’s fiduciary duty”

Types of Confidential Information

  1. Employee Information

This includes information one will hear about individuals within the organisation. Parts of it includes gossip, information that one will come across in the course of their work, especially if you work as a line manager or you work in human resources.

  • Managerial Information

“Managerial information includes both information about individuals, such as disciplinary action, and also about broad management actions such as planned redundancies or employee relations issues”.

  • Organisational Information

Organisational information is also known as business information or trade secrets (this is why some businesses include restraints of trade clauses in the employment contracts). This includes anything that is not disclosed to public that helps the organisation do its work better and efficiently. For example, information about industrial processes, budgets, costs, forecasts, and even customer contact information.

  • Customer or Contact Information

“Customer and contact information is partially covered by ‘trade secrets”. However, the full effect of the POPI Act from the 1st of July 2021 in South Africa pushes business priorities all information, especially this very type.

  • Professional Information

Some professionals like doctors, lawyers and accountants are usually exposed to individuals’ or organisational information through their professional positions. These professionals are therefore in most cases bound by professional codes of conduct as well as formal legal requirements to not disclose that information.

Maintaining Confidentiality in the Workplace

 Important ways to help maintain confidentiality in the workplace

  1. Create thorough policies and confidentiality agreements

Developing and implementing confidentiality agreements and/ or policies allows everybody in your company to know exactly what is expected of them under any circumstances. These agreements or policies must be thoroughly read and signed by every staff member. They can also be regularly shared with customers and other stakeholders to show that the organisation upholds strict confidentiality procedures and can be trusted with confidential information.

  • Provide regular training

People comply best to policies and practices that they fully understand and are in the clear as to why they are in place. Holding regular training sessions for all staff members helps to reinforce how important confidentiality requirements are it also refreshes the employees’ minds of their duties and expectations.

In order to get good results, the employer should make these training times fun, and ensure they provide a good opportunity for the employees to learn while getting to know each other even more. Taking a creative approach in these trainings and including games also helps to make this a positive and fun experience for the employees, and allows them to be more engaged and interested in the information presented.

  • Make sure all information is stored on secure systems

So many organisations may face challenges in correctly storing information in terms of where to store data base on quantities and making the information easily accessible to the relevant personnel. Despite all the difficulties it is important that the highest level of security and digital protection is used when storing data. “Purchasing platforms or using cloud providers that ensure your data is safe is the best way to look after this”.

  • No mobile phones near confidential information

This helps to ensure that no one is able to either capture, record or photograph private information.

This can sometimes be a difficult rule to enforce given the escalation of digital devices. However, regularly reminding employees and clients why it is in their best interests to keep information confidential can help to reduce any resistance.

To reasonably conclude the issue:

In National Union of Metalworkers of South Africa v Rafee NO [2017] 2 BLLR 146 (LC) an employee took photographs of the employer’s production line. The employer upon found out about gave the employee a verbal warning that he was not permitted to take photographs. The employer was furthermore, instructed to delete the photographs that he had taken and to hand over his cellphone so that the employer could double-check. The employee refused to hand over the phone as he believes that it was his private property and that he was entitled to take photographs. After refusing to hand over the phone four times he was suspended and called to a disciplinary hearing.  The employee was found guilty and dismissed for the failure to delete photographs of the employer’s production line and refusing to hand over the phone so that management could ensure that the photographs had been deleted.

As clearly highlighted throughout the article, the protection of this information helps the employer and/ or employees to avoid legal actions from the parties concerned. It’s always better to be in compliance than to regret while facing consequences. POPI Act training, restraints of trade agreements and drafting of confidentiality policies and procedure are all essential elements in ensuring that the business complies with the law regarding to confidentiality in the workplace. 

Should you require any assistance with the above please click here to contact us for free advice

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