POPIA “Pops Up” in Employment Arbitrations

At the commencement of an arbitration in a recent dismissal dispute, the question arose whether a dismissed employee could use the confidential personal information of other employees, namely the disciplinary charges and outcomes which had been issued to them, to challenge the fairness of his dismissal on the basis of consistency.

Written By of Cowan-Harper-Madikizela Attorneys

For context, the former employee obtained information on the disciplinary outcomes of four “data subjects” (who were current and former employees of the company) and who had been issued with disciplinary charges and outcomes in the past years for similar offences. The former employee alleged that they were treated more leniently and hence the company had applied its disciplinary code and procedure inconsistently and unfairly. He sought reinstatement and compensation.

Unauthorized Manner

Of importance is that the former employee had obtained the confidential personal information of the four data subjects in an unauthorized manner. In this regard, the employee neither presented the written consents of the four data subjects permitting him to disclose their information nor did he disclose how he had obtained the information. The information was also not requested by the employee prior to the commencement of the arbitration.

If the confidential personal information of the four data subjects had been obtained by an unauthorized person in an unauthorized manner, then the company has a duty to notify those employees that their information has been so accessed in terms of section 5(a)(ii) of the Protection of Personal Information Act 4 of 2013 (“POPIA”).

The company raised a point in limine and argued that the former employee had breached the provisions of POPIA by disclosing the confidential personal information of the four data subjects where he had obtained that information in an unauthorized manner and hence that that information should be removed from the bundle of documents lodged by him at the arbitration.

Findings and Effect of the Ruling

Having taken account of the submissions of the company, the arbitrator found that there was a breach of the provisions of POPIA and that the former employee was required to remove the confidential personal information of the four data subjects from his bundle.

The effect of the Ruling is that where a person seeks to rely on perceived inconsistency, he/she must either obtain the consent of other persons to release their personal information or he/she must invoke legal process to obtain that information. Litigants must ensure that confidential personal information is obtained in an authorized and valid manner in accordance with the provisions of POPIA.

It should be noted that in terms of section 11(3)(a) of POPIA, a data subject may object to the processing of his/her personal information on reasonable grounds relating to his/her specific situation, unless legislation provides for such processing.

Rejection of Unauthorized Access or Acquiring of Personal Information

It can be further argued that the collection of the personal information from another source other than the data subject is necessary “for the conduct of proceedings in any court or tribunal that have commenced or are reasonably contemplated” (see section 12(2)(d)(iii) of POPIA). This should be read with section 5 of POPIA which states that a data subject has the right to have his/her personal information processed in accordance with the conditions of lawful processing.

This means that while a person may acquire and rely on the personal information of data subjects who are not parties to his/her legal proceedings without the consent of those data subjects, he/she cannot seek to obtain that information in an unauthorized and invalid manner. The person must follow the necessary lawful processes available to him/her in order to obtain that information.

Rod Harper and Jessica Fox of Cowan-Harper-Madikizela Attorneys represented the company in this matter, Jessica Fox argued the issue of POPIA.

Rod Harper

Rod Harper
Executive in Employment

Jessica Fox

Jessica Fox
Partner in Employment

Share This Article

© 2021 - 2024. Cowan-Harper-Madikizela Attorneys
All Rights Reserved.