Signing and serving documents electronically

It frequently happens that employers are faced with situations where it becomes necessary to serve documents, such as notices to attend hearings, on employees. This can give rise to several challenges, such as instances where an employee has absconded and their whereabouts are unknown, or where an employee outright refuses to sign a document presented to them.

Although these situations can be frustrating, employers are still expected to comply with the law and the requirements of procedural fairness to avoid potentially costly consequences should the matter ultimately be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a Bargaining Council.

The advent of technology and the progression of South African law relating to the electronic service of documents and legal process can, if applied correctly, be a very useful tool in dealing with such workplace situations and can offer a simple solution to these frustrations.

A signature

A signature is any mark or stylistic representation that a person makes to represent their name on a document, usually with the intention of authenticating the document and indicating their agreement to be bound by its contents.

A signature may take the form of a traditional handwritten wet-ink signature or a recognised electronic data format. The common law and the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) regulate the requirements for a valid signature and electronic signature, respectively.

Under the common law, the requirements for a valid handwritten wet-ink signature are as follows:

• Presence of a name or mark: The document must display the name or mark of the person signing it.
• Personal application: The signature or mark must be applied directly by the person concerned, indicating their personal involvement in the signing process.
• Intention to sign: The person signing the document must intend to authenticate it through their signature, thereby demonstrating a deliberate commitment to the contents of the document.

The ECTA defines an electronic signature as follows:

“Data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.”

A data message is defined as:

“Data generated, sent, received or stored by electronic means and includes:

(a) voice, where the voice is used in an automated transaction; and

(b) a stored record.”

Subject to certain exclusions, South African law recognises electronic signatures, provided that the requirements of ECTA and any other specific legal requirements applicable to the document in question are met.

In the workplace

Applied practically in the workplace and for the purposes of addressing labour related matters, this means that it is possible to legally sign and serve documents on employees electronically by means of email, SMS, or WhatsApp, for example. It remains important, however, that employers continue to follow fair procedures and comply with workplace rules and policies. While this is generally easier when dealing with employees in person, this is not always possible.

In the event that an employer is required to serve a notice to attend a disciplinary enquiry on an employee who has absconded and cannot be contacted, the employer may send the notice to the employee’s known cell phone number or electronic address by means of SMS and/or WhatsApp where the information is typed out in the message. The employer should retain a screenshot of the message showing that it was delivered as proof of service on the employee.

Electronic communication in these circumstances can also provide useful evidence that reasonable steps were taken to bring the notice to the employee’s attention.

From a practical perspective, it is worth sending the notice via SMS even where a WhatsApp message or email has been sent, as the employee may not receive a WhatsApp or email notification if they do not have data or access to Wi-Fi. Employers should retain evidence of transmission and, where available, evidence of delivery or receipt, such as screenshots, delivery confirmations, read receipts, or other electronic records.

Refusal to sign

Similarly, where the employee is present and refuses to sign a document, the employer may obtain the employee’s reasons for refusing and attempt to address any concerns raised. If the employee nevertheless persists in refusing to sign, the employer may request a competent witness to confirm, by signature, that the document was presented to the employee for signature in the witness’s presence and that the employee refused to sign it. This creates contemporaneous evidence that the document was presented to the employee and that the employee was aware of both the document and the process in terms of which it was served.

A copy of the notice or document signed by the witness can then be sent to the employee electronically to further confirm that the document or notice was served on the employee.

It also bears mentioning that all LWO documents relating to labour matters require employee signatures. LWO documents further provide for a witness to sign where an employee refuses to sign the document.

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