Opinion / Columnist
Authenticating Electronic Records-Based Evidence in Zimbabwean Labour Disputes: Lessons from the Mahere and Chirambwe Case
11 hrs ago | Views
The recent case between Fadzai Mahere and Mr. Chirambwe has ignited a firestorm of controversy, casting a spotlight on the labyrinthine complexities of authenticating electronic records-based evidence in Zimbabwean labour disputes. Mahere's allegations of unwelcome advances, tantamount to sexual harassment, have sparked a contentious debate. Her case is currently pending in the courts, and she has also reported Chirambwe to the Law Society of Zimbabwe. However, Chirambwe has vehemently contested Mahere's claims, arguing that she failed to submit admissible evidence before the Law Society of Zimbabwe. Furthermore, he has questioned the authenticity of a WhatsApp screenshot, which he claims is inadmissible as evidence.
This case has underscored the Achilles' heel of relying on electronic records-based evidence in labour disputes. The ephemeral nature of digital communication, coupled with the ease of manipulation, has created a perfect storm of uncertainty. In this article, we will delve into the complexities of authenticating electronic records-based evidence in Zimbabwean labour disputes, navigating the treacherous waters of digital communication.
The definition of electronic records is a crucial linchpin in understanding the intricacies involved. According to the Prince Edward Island Canada-Department of Environment, Labour and Justice, an electronic record is "data that is recorded or stored on any medium in or by a computer system or other similar device." This broad definition encompasses a vast array of digital communication, including emails, social media posts, and text messages.
However, the authenticity of electronic records-based evidence is often contested in court, leaving employers and employees navigating a minefield of uncertainty. The ease with which digital data can be edited, modified, or manipulated raises concerns about its reliability. Furthermore, the lack of internet policies in many organizations has created a vacuum, making it difficult to discipline employees for internet-related misconducts.
Zimbabwean labour laws are silent on internet-related workplace misconducts, leaving employers and employees without clear guidelines. The Labour Act and the Statutory Instrument 15 of 2006 do not provide adequate provisions for addressing these issues, creating a lacuna that needs to be addressed.
The case of Attorney General vs Bennet, heard in the Supreme Court, has set a precedent, highlighting the importance of authenticating electronic records-based evidence. The court reaffirmed the High Court's ruling, stating that the admission of emails as evidence was conditional upon the state proving their authenticity. The state's failure to do so rendered the emails inadmissible, leading to Bennet's acquittal.
In other jurisdictions, courts have established rules for the admissibility of electronic records. Ala Pendleton (2013) notes that proving the real author of an email message or social network posting can be a daunting task. He emphasizes that the fact an email communication bears a person's name is insufficient to authenticate it as having been authored or sent by that person.
To overcome these challenges, employers can use three methods to authenticate electronic records-based evidence. Firstly, they can ask the alleged author if they created the Facebook profile or email account. If the employee acknowledges ownership, it becomes easier to authenticate the evidence. Secondly, employers can search the employee's computer and examine the internet history and hard drive to determine if the computer was used to create the profile and posting. However, this option poses challenges when employees use personal devices. Thirdly, employers can obtain information directly from the social network website, but this option is often impossible and expensive.
In conclusion, authenticating electronic records-based evidence in Zimbabwean labour disputes is a Gordian knot that needs to be untangled. Employers must gather sufficient evidence to support their claims, while employees must be cautious when using the internet to avoid misconducts. The lack of clear guidelines in Zimbabwean labour laws and the challenges of authenticating electronic records-based evidence highlight the need for organizations to develop comprehensive internet policies and for the government to review and update labour laws to address these emerging issues.
_Etiwel Mutero is a teacher, archivist, labour consultant and a political commentator. He holds a Post Graduate Diploma in Education, a Bachelor of Science Honours in Records and Archives Management, a National Certificate in Records and Information Science and a Certificate in Teaching English as a Foreign Language. He has published a lot of articles published in both print and online newspapers.__
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This case has underscored the Achilles' heel of relying on electronic records-based evidence in labour disputes. The ephemeral nature of digital communication, coupled with the ease of manipulation, has created a perfect storm of uncertainty. In this article, we will delve into the complexities of authenticating electronic records-based evidence in Zimbabwean labour disputes, navigating the treacherous waters of digital communication.
The definition of electronic records is a crucial linchpin in understanding the intricacies involved. According to the Prince Edward Island Canada-Department of Environment, Labour and Justice, an electronic record is "data that is recorded or stored on any medium in or by a computer system or other similar device." This broad definition encompasses a vast array of digital communication, including emails, social media posts, and text messages.
However, the authenticity of electronic records-based evidence is often contested in court, leaving employers and employees navigating a minefield of uncertainty. The ease with which digital data can be edited, modified, or manipulated raises concerns about its reliability. Furthermore, the lack of internet policies in many organizations has created a vacuum, making it difficult to discipline employees for internet-related misconducts.
Zimbabwean labour laws are silent on internet-related workplace misconducts, leaving employers and employees without clear guidelines. The Labour Act and the Statutory Instrument 15 of 2006 do not provide adequate provisions for addressing these issues, creating a lacuna that needs to be addressed.
The case of Attorney General vs Bennet, heard in the Supreme Court, has set a precedent, highlighting the importance of authenticating electronic records-based evidence. The court reaffirmed the High Court's ruling, stating that the admission of emails as evidence was conditional upon the state proving their authenticity. The state's failure to do so rendered the emails inadmissible, leading to Bennet's acquittal.
In other jurisdictions, courts have established rules for the admissibility of electronic records. Ala Pendleton (2013) notes that proving the real author of an email message or social network posting can be a daunting task. He emphasizes that the fact an email communication bears a person's name is insufficient to authenticate it as having been authored or sent by that person.
To overcome these challenges, employers can use three methods to authenticate electronic records-based evidence. Firstly, they can ask the alleged author if they created the Facebook profile or email account. If the employee acknowledges ownership, it becomes easier to authenticate the evidence. Secondly, employers can search the employee's computer and examine the internet history and hard drive to determine if the computer was used to create the profile and posting. However, this option poses challenges when employees use personal devices. Thirdly, employers can obtain information directly from the social network website, but this option is often impossible and expensive.
In conclusion, authenticating electronic records-based evidence in Zimbabwean labour disputes is a Gordian knot that needs to be untangled. Employers must gather sufficient evidence to support their claims, while employees must be cautious when using the internet to avoid misconducts. The lack of clear guidelines in Zimbabwean labour laws and the challenges of authenticating electronic records-based evidence highlight the need for organizations to develop comprehensive internet policies and for the government to review and update labour laws to address these emerging issues.
_Etiwel Mutero is a teacher, archivist, labour consultant and a political commentator. He holds a Post Graduate Diploma in Education, a Bachelor of Science Honours in Records and Archives Management, a National Certificate in Records and Information Science and a Certificate in Teaching English as a Foreign Language. He has published a lot of articles published in both print and online newspapers.__
https://chat.whatsapp.com/LwoEryzapS3Bw1jJyLhGsO
Source - Etiwel Mutero
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