Seeking advice regarding unethical business practices:

[V4Victory]

Dear Members

Please offer some advice on the following:

An organisation which I created, serves to generate content for firms and companies. One of my associates within my organisation has approached my main client who we are currently providing content to (a client which I initially introduced into the business) in a underhanded manner and has ask my client if she could continue generating copy/content for the remainder of the ongoing project – but only this time, in her personal capacity and not as part of my organisation.

I have recently discovered that she has subsequently been awarded a contract to continue generating copy in her private capacity on behalf of my client. I uncovered this dishonesty in one of her emails as I own the domain and hosting facilities.

My first question is: am I entitled to read company/staff/partners emails?

Secondly: I am not at all please to find that this has effectively exclude my organisation and myself from generating further content for the ongoing original project and the client has chosen instead to continue with the second phase of this project in an underhanded and deceptive manner by using a person within my organisation, without my knowledge and who I initially introduced to the project.

I have been working with this client for years and only have verbal agreements in place.

What recourse do I have?

I thank you in advance for your anticipated words of wisdom.

[adrianh]

What does the contract between you and your associate say regarding corporate IP?
Does your contract with your associate say that their email is open to scrutiny?
Howcome you read her email?

If you wat to take the moral highground then you must be sure that you won't get knocked down through your own actions.

[AndyD]

I wouldn't see any mileage in going after the client on a legal level, especially if there was only verbal agreements in place. I would possibly approach the client purely on a business level and attempt to persuade them to cancel their new agreement with your associate in favour of a better deal offered by your organisation. Out of principal I would be tempted to cut margins to nothing just to exclude the underhanded associate from getting the business.

That then would leave the question of what to do about the underhanded associate. I guess this would largely depend on how she's related to the business. Is she a partner, employee, share holder? How exactly does she fit in?

[V4Victory]

Thank you for taking the time to offer your advice AndyD, much appreciated.

She is a new partner in this organisation.

As a matter of interest, where do you stand on the email reading question and perhaps more importantly, would you know if South African law specific in this area?

Again, thank you!

[Dave A]

I wouldn't see any mileage in going after the client on a legal level

Agreed - that's not an option. Contacting the client to let them know you are disappointed about the incident as an opening gambit wouldn't hurt, though.

If you're going to sue anyone, it is the associate. And based on your outline, probably worth going that route if there's enough money on the line.

[V4Victory]

Many thanks for your thoughtful opinion, kind of you to take the time.

On the email issue, I was very suspicious that a contract could be withdrawn mysteriously. May I add that it is generally not my nature to snoop about in other peoples personal affaires but this was not a private email account, it belongs to my organisation.

As a matter of interest, new technologies make it possible for employers to monitor many aspects of their employees' jobs, especially on telephones, computer terminals, through electronic and voice mail, and when employees are using the Internet. Such monitoring is virtually unregulated. Therefore, unless company policy specifically states otherwise (and even this is not assured), your employer may listen, watch and read most of your workplace communications – this however, is not the extent that I would go to in order to establish my conflict of interest situation but know if South African law is specific in this area?

[adrianh]

Therefore, unless company policy specifically states otherwise (and even this is not assured), your employer may listen, watch and read most of your workplace communications

I am quite certain that the law does not see it this way

A telescope makes it possible to look at your neighbour in the bath - the fact that the technology is readily available doesn't mean you have the right to use it to spy.

[V4Victory]

Value your opinion adrianh but would it not also be reasonable to say - using your analogy, that the “neighbour in the bath” would be monitoring a personal email account and perhaps the metaphorical planet Neptune, would be monitoring a company email account.

Would it not have been wiser for this person to have approached my client, in a bid for personal gain, using a generic email address as opposed to our company email address?

Would it also be reasonable to suppose that I have a right to safeguarding against in-house trade secret leaks?

Thank you for your time.

[Dave A]

I'd argue the email access issue slightly differently.

If it's a business email account, username@companydomain I really don't see a problem. After all it would be pretty ridiculous to require businesses to keep their email correspondence for years and years by regulation (just which reg eludes me right now), and then prohibit anyone but the original mailbox operator from ever reading it on the grounds of privacy.

A personal email service not on the company domain? That would be a different story.

[adrianh]

I do not believe that you have the right to read her mail unless you explicitly informed her that you reserve the right to do so. I don't think that you have the right to do so merely because it is a company email address.

And again, I also don't think that you will win if you were to go to court or the CCMA about her taking the client if you didn't have an agreement up front stating what is expected.

The best person to answer these questions would be Sterne.Law

[AndyD]

If the mail was sent or received;

• From or to an existing customer
• From or to an employee at work
• During company business hours
• From a company PC
• Using the companies ISP and bandwidth
• From or to an email address on the company domain

I would say that there would be no right or expectation of privacy. This is just an opinion and carries no legal weight, as Adrian suggested maybe wail for someone more qualified to comment.

[adrianh]

You are saying, by implication, that the boss can also listen in on your phone calls if the calls are made using a company phone. The fact that the communication medium is different doesn't mean that the content is less protected.

Here is another question - what about the privacy of the person on the other end of the email, does the boss have the right to invade their privacy without their knowledge?

A friend of mine flies A320's for SAA. Nobody may, under any circumstances other than those stipulated by law, listen to the cockpit voice recorders - why, because the conversations that the pilots have are considered private even though they are flying an SAA plane.

[AndyD]

From a legal point of view I have no idea where the right to privacy at work starts or ends.

If someone works for a company and communicates on a business level to other people outside that company then they do so as an agent of that company. Anything said by someone considered an agent of an organisation has legally binding implications. As such I would suggest it's not only a right of the boss or owner to monitor employees communications of any kind (phone, email, verbal or even sign language) it would actually be a responsibility.

[Dave A]

as Adrian suggested maybe wail for someone more qualified to comment.

I'm with all of you on that one. A legal precedent on the admissability of the email evidence would be really handy right now.

On the poaching of clients side of things, this moonlighting employees discussion seems relevant.

[V4Victory]

Thank you for your contribution adrianh - just to set the record straight, I would feel very uncomfortable executing or participating in phone-taps, spying or any other form of intelligence work in general however, I believe that one needs to consider the context which surrounds the motive in this particular scenario.

I would imagine that cockpit voice recordings and probably most large aircraft and pilot conversations may be a matter of national security and/or a matter of international security post 911.

Perhaps those stipulated by law, as you point out, have an invested interest in needing to know about those communications irrespective of a pilots privacy.

As it turns out in my situation, the substance of the correspondence addressed to my client on a company email account using a company server, was misleading and completely untrue.

There was a great deal more unethical activity which surrounds this particular individual and her peculiar behaviour, in addition to that previously mentioned.

In all my years of dealing with people, locally and internationally for that matter - I can categorically state that I have never come across any individual who is as inherently dishonest and deceptive as in the case of this particular individual.

She has only been involved with me in business for a few months and already the situation is untenable. It needs to reach some clear and final resolution as it is costing me time and money, not to mention an ineffable amount of stress.

Just for the record, I am in no way interested in any aspect of her personal existence – it is purely a matter of the nature of business correspondence which is the subject in this instance.

Thank you for your interest in furthering this discussion.