Authenticating electronic based records based evidence in Zimbabwean labour disputes

Today computers provide us with powerful tools for information handling, retrieval and distribution. Computers have contributed to the efficiency and effectiveness of organizations through the use of new communication channels such as social networks, emails, blogging and chartrooms for example. However, the internet had brought new set of challenges at the workplace such as the advent of cyber-crimes or misconducts which were unknown prior to the 1960s when the internet was introduced. In this paper the author will discuss some of the challenges in the admissibility of electronic/digital evidence in relation to labour related disputes in Zimbabwe.

According to Prince Edward Island Canada-Department of Environment, Labour and Justice an electronic record is defined as data that is recorded or stored on any medium in or by a computer system or other similar device that can be read or perceived by a person or a computer system or similar device. It is information captured through electronic means, and which may or may not have a paper record to back it up. It is also called a machine readable record.

The internet is a good asset to an organization if rightly used by employees; however it can turn to a liability particularly when it comes to employee misconducts. Some employee internet related misconducts may include copyright infringement, stalking, pornography, harassment, defamation, misuse of the company name over the internet for personal gain etcetera.

It has been always a challenge to employers or organizations to authenticate the internet based evidence to support the alleged findings that the electronic record used as evidence against an employee is what the organization claims it to be. Electronic records based evidence is open to challenge in courts because electronic data is easily edited modified and therefore electronic evidence can therefore be unreliable and fraudulently altered or misrepresented.

The other challenge which may be faced by Zimbabwean organizations in disciplining employees over internet related misconducts is that the majority of organizations do not have what is called the internet policies. An internet policy provides employees with rules and guidelines about the appropriate use of company equipment, network and internet access. This policy is a must for almost every organization. The organization internet policy must be incorporated into the organization's code of conduct. Without the internet policy it may prove difficult to lay charges on an employee over internet related misconducts.

The other challenge is that the Zimbabwean labour laws are silent when it comes to internet related workplace misconducts; this includes the labour act and the Statutory Instrument 15 of 2006.  Mrs Revai Sweto-Mukuruba in her paper "Sadc Harmonised Legal Cyber Security Framework for Southern Africa" bemoaned the fact that the Criminal Law (codification Act) was not addressing holistically computer related crimes in Zimbabwe necessitating the tabling of a new Cyber Crime Bill before parliament during the current parliament session.

Though Mrs Revai Sweto-Mukumba says there isn't any significant cyber- crime cases brought before the Higher Courts in Zimbabwe the author noted a case between Attorney General vs Bennet which was heard in the Supreme Court as of paramount importance in this discourse. The Supreme Court reaffirmed the high court ruling which said: "As previously stated in my earlier ruling, the court's admission of the e-mails was conditional upon the sate being able to prove that the questioned e-mails are genuine and authentic. The state's failure to prove the authenticity of the e-mails automatically renders the emails inadmissible." Due to the fact that the Attorney General failed to prove the authenticity of the e-mails he had presented as evidence before the court Bennet was acquitted.

In other countries the courts have set up rules on the admissibility of electronic records.  Ala Pendleton (2013) reiterated that it is usually difficult to prove the real author of an email message or social network posting. He says since there is no security over these internet communications there will be always issues as to whether a third party may have sent a message via another user's account. Standing alone, the fact that an email communication is sent on a social network and bears a person's name is insufficient to authenticate the communication as having been authored or sent by that person.

How then can the employer authenticate electronic based evidence to prove that the alleged misconduct was indeed committed by an employee?  Ala Pendleton (2013) says there are three methods of authenticating electronic evidence. The first one is to ask the alleged author if he created the facebook profile or created the email account. It became easier if the employee voluntarily owns up the account and the message.

We move on to option two if the employee disowns the account and the posting. The second option involves searching the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine if the computer was used to create the profile and the posting in question. Option two poses a challenge where the internet was accessed on a personal mobile phone or computer, there is no way the company can have access to the employee's personal gadgets unless the company gets a court order first.

The third option is to obtain information directly from the social network website that links the establishment of the profile to the person alleged to have created it and also links the posting sought to be introduced to the person who initiated it. Apart from being impossible option three is very expensive because it requires organizations to send emissaries to overseas where most social networks websites are hosted.

It is therefore the author's advice to all employees to play wisely over the internet to avoid misconducts which may arise over the use of internet while it is also the author's advice to employers to gather enough evidence to support their electronic records evidence before rushing to lay misconduct charges against your employees over internet related misconducts.

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Etiwel Mutero is a labour consultant. He holds a B.Sc. Honours Degree in Records and Archives Management and a National Certificate in Records Management and Information Science. You can contact him on +263773614293, email etiwelm02@gmail.com or on   www.facebook.com/emutero