Discovery fires employees over private WhatsApps

By Phumi Ramalepe for Business Insider SA

Discovery Health has dismissed 10 employees for being part of a private WhatsApp group that apparently aimed to get its Cape Town offices closed.

The 10 young call centre employees apparently asked to be allowed to work from home around the beginning of lockdown. Three of them said they contracted Covid-19.

Their lawyer says their privacy was violated. Discovery says the evidence it obtained through a whistleblower is grounds for dismissal.

Discovery Health fired 10 call centre employees during lockdown for being part of a WhatsApp group that, apparently, sought to “shut down” local Cape Town offices in March, for fear of the coronavirus.

Now the employees want compensation, and their jobs back, but Discovery says it had solid grounds to dismiss them – even though the chat group was private.

According to Discovery, another employee, who had been an active participant of the group, provided information about posts in the group. The company characterises the conversations as bringing it into disrepute, while, it says, the employees failed to raise their concerns internally.

“Ten employees were plotting to sabotage Discovery Health, including plans to involve external third parties to bring the company into disrepute,” said Ryan Noach, the CEO of Discovery Health.

“The motive appeared to be an attempt to achieve the closure of the local Discovery Health offices, in order not to have to work during the period.”

Although the group chat was private, Discovery insists that the employees were “acting subversively”, based on evidence from the whistleblower.

After investigations were conducted, the employees were dismissed in July.

The employees’ pro bono lawyer, Nkosinathi Malgas, said the employees were dismissed unfairly, and only created the WhatsApp group to support each other after Discovery Health refused to let all of them work from home while three of them contracted Covid-19.

“The contents of the WhatsApp group were them talking about their safety in the workplace, and they were supporting one another in terms of the emotional trauma that they were going through,” said Malgas.

Malgas argues that the employees’ right to privacy was also violated, since information that was meant to be private was used against them.

“Constitutional rights of citizens override any social [media] policy. This information was processed from their personal cellphones and these individuals have got a right to privacy.

“Their information is protected in terms of the Protection of Personal Information Act, and therefore anyone who wants to get into your personal information must do so with your consent as well as a court order,” said Malgas.

It would have been a different story had the employees used Discovery’s tools of trade, according to Malgas, rather than their own cellphones and a chat platform unconnected to the company.

Noach, however, insisted no one’s rights were infringed throughout investigations.

“It should also be entirely clear, that all device information utilised in this disciplinary investigation was submitted voluntarily and without coercion, by a whistleblower who made their personal device available.

“There was certainly no infringement of any personal confidential device information whatsoever,” Noach said.

An arbitration that wasn’t
Discovery and the employees had been due to appear before the Commission for Conciliation, Mediation and Arbitration (CCMA) on Monday, but Discovery did not show up, according to Malgas.

A clause in the employees’ contracts stipulates that any dispute related to labour matters, dismissals or termination of employment will be referred to a private arbitration, Malgas said, which means they will have to pay a potion of the cost of such private arbitration.

Discovery tells a different story, however. It had applied for the CCMA matter to be heard virtually, the company said.

“The Commissioner tasked to deal with the matter was unfortunately unavailable and the file was handed to another. It was unfortunate that technical issues were experienced on the side of the CCMA and we could not engage further,” Noach said.

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