Social media e-misconduct is on the rise

Social media e-misconduct is on the rise

The explosion of social media platforms, and their usage, has unsurprisingly spawned a fast growing plethora of workplace social media ‘e-misconduct’ cases.

Put simply, this primarily involves cases in which employees insult and/or offend their employer and/or its management on social media platforms such as, for example Facebook, Twitter, LinkedIn and WhatsApp groups.

This clearly has reputational consequences for employers, which is linked to the universal right to dignity.

The employment law cases which have thus far dealt with the apparent, at face value, conflict between the right to freedom of expression, and the right to protection of one’s reputation and dignity, have trended in favour of curbing the right of freedom of expression when it undermines reputational rights.

Key to the right of employer’s to take disciplinary steps against employees in such cases is the fact that after hours employee conduct does indeed fall within the ambit of an employer’s disciplinary code if such after hours, off duty, misconduct, is work related.

In Radebe v JD Group (Pty) Ltd [GAJB12297-14], the employee was dismissed for having posted insulting statements on his Facebook page after having been confronted by management regarding his poor time keeping and tardiness.

The Commissioner noted that “The applicant had submitted no formal grievance, against anyone, for the company to deal with but chose to vent himself on the social media”, and that “the employee constituted the face and voice of the company and his conduct on social media showed no regard for possible risks he exposed the company to with his comments”.

The dismissal of the employee was upheld.

Similarly, in Motloung v The Market Theatre Foundation [GAJB4458-11], the employee had been dismissed for what the Commissioner described as “a hate speech statement on Facebook” which “impacted negatively on the employer”.  As far as the employee’s purported right to freedom of speech was concerned, the Commissioner noted that “I do not accept the argument that the employee’s Constitutional right to free speech entitled him to act as he did”.

Numerous CCMA and Bargaining Council arbitration awards and Labour Court judgments concur that employees may not slander their employees on social media platforms, and that should they do so, they commit a dismissible act of misconduct.

In the Motor Industry Bargaining Council arbitration case of Arthur Leach v Suzuki Johannesburg South [MIBCO DRC 44570D], it was held that “the DRC accepts that the CCMA had held in recent cases that employees may be dismissed for having posted false derogatory remarks about their employers or even the employer’s clients on Facebook, Twitter and other social networks or blogs, as these posts may have had the effect of harming the ongoing employment relationship, or have brought the employer’s name into disrepute”.

Continuing, the arbitration award added that “In aforesaid regard, there had been recent cases where employees had been dismissed for social media misconduct.  Cases such as Sedick & another / Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA); Fredericks / Jo Barkett Fashions (2012) 1 BALR 28 (CCMA) and Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA) … are examples where the cause of dismissal/disciplinary sanction had been related to social media misconduct.”

Of importance in such cases is whether, or not, the employees had restricted their Facebook privacy settings, as this talks to the right of employers to access employee Facebook pages.

In a recent KZN CCMA Arbitration Award in BEMAWU obo Thulani Msimang (KNDB 14983-16), it was held that “In two cases heard at the CCMA where the employees had not restricted their Facebook privacy settings, namely, (Sedick and another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA) and Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA), the Commission took the view that the employer was entitled to intercept the posts in terms of the Regulation of interception of communications and provision of communication related information Act 70 of 2002 (RICA).”

In a recent UK social media related case, it was held that the employee “was aware of the (social media) policy and one assumes she read it, she must have been aware what was and what was not allowed …. It may be seen as harsh but the (employer’s) taking into account of the (employee’s) long service and clean record nevertheless dismissed for a clear breach of the policy and that would fall within the range of reasonable responses open to an employer”.

So what can we learn from this?

What is becoming abundantly clear is that employers would do well to establish social media policies designating it an offence to post content which brings the good name and reputation of the employer into disrepute, and to supplement this with reference to such misconduct in the employer’s disciplinary code.  What’s more, this policy should be a key component of an employer’s induction process.

Employer social media policies should remind employees not to rely on Facebook’s privacy settings, as comments can be copied and forwarded on to others without permission.

Employees would do well to exert considerable care when tempted to slander their employer on social media.

Zero-tolerance policies in the spotlight

Zero-tolerance policies in the spotlight

It is not unusual for employer’s to designate so-called ‘zero tolerance’ policies for certain acts of misconduct. For example, an employer will often adopt a ‘zero tolerance’ policy towards theft related cases and alcohol related offences.

The upshot of this is that any employee found guilty of an act of misconduct which falls within a zero tolerance policy framework, will invariably result in the dismissal of the employee, regardless of the fact that the employee may, for example, have an otherwise clean disciplinary record.

At face value, these zero tolerance tendencies are quite understandable in certain circumstances. The question is however, whether dispute resolution bodies, such as the CCMA, will recognize such zero tolerance regimes regarding certain offences.

Case law directs us on this vexed question, and the answer is not as straight forward as many employers would believe.

Our Courts have had much to say about “a slavish imposition of the dismissal penalty” in the event of a breach of a company zero tolerance policy [Labour Court: Pick ‘n Pay Retailers (Pty) Ltd v CCMA & others – C1083-14].

It was further held in this case that “It is also necessary to make some further remarks as regards dismissal for a first offence ie: a “zero tolerance” policy. A dismissal will only be fair if it is procedurally and substantively fair. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether a decision is fair. As the code of good practice enjoins, commissioners will accept a zero tolerance if the circumstances of the case warrant the employer adopting such an approach”.

In another retailer case before the Labour Appeal Court, that of [Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement – JA49-14], it was held that “the law does not allow an employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a no go area for commissioners. A zero-tolerance policy would be appropriate where, for example, the stock is gold but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin.”

That’s not to say that zero-tolerance policies cannot be upheld in certain circumstances.  Safety is of critical importance in many workplaces, such as a mining environment.  In the Labour Court judgment in Superstone Mining (Pty) Ltd v CCMA & 2 others [Case no. C959/11), it was held that “given the employer’s zero tolerance policy with regard to alcohol-related misconduct of which the employee was aware, dismissal was clearly a fair sanction”.

In Assmang Ltd v CCMA & 2 others [JR911/13], the Labour Court once more upheld the notion of zero-tolerance policies relating to alcohol and safety in finding that “Being a mine, however, the Applicant is bound by the provisions of the Mine Health and Safety Act, which prohibits an employee from entering the mine premises whilst under the influence of alcohol …. the Second Respondent ought to have taken into account, the importance of the safety rule concerned, the reasons for their existence, and the seriousness and potentially life threatening consequences of a breach of such rule”.

In the final analysis, employers should be cautious in implementing zero tolerance policies; dispute resolution bodies such as the CCMA, Bargaining Councils and the Labour Courts, may frown upon such a policy. To a large degree, this criticism relates to such zero tolerance policies ignoring progressive discipline options such as final written warnings.  Foreign jurisprudence has dealt with this issue, on occasion, by noting that a zero-tolerance policy in dismissal cases may not necessarily be upheld if the employer’s disciplinary code provides for discretion in the imposing of a dismissal sanction when misconduct is committed in respect of which there is ‘zero tolerance’.  For example, does the disciplinary code state that the misconduct will lead to dismissal, or ‘may’ lead to dismissal?

In the final analysis, reasonable and justifiable zero-tolerance policies will be upheld in regard certain acts of misconduct, and each case will be examined on it’s own merits

Another bugbear of our Courts is frequent inconsistency in the application of such policies.

Employers may indeed emphasize the gravity of certain acts of gross misconduct in disciplinary codes, but be open to the fact that there will be, in exceptional circumstances, circumstances in which dismissal will deemed to be too harsh a sanction.

Failure to disclose prior criminal convictions

Failure to disclose prior criminal convictions

To what extent is a job applicant obligated to reveal to a prospective employer, that they have a criminal record?  Is a job applicant obligated to reveal to a prospective employer, that they have a criminal record?  To what extent are employers able to fairly discriminate against job applicants with criminal records?

These are vexed questions which employers, and indeed employees, face on occasion.

To begin with, there is no doubt that employers should have recruitment and selection policies and procedures which clearly obligate job applicants to reveal all information pertinent to their application, and highlighting that any material omissions in a CV or application form, would place any subsequent employment with the company at risk.

Best practice in this regard would, for example, include the incorporation of a declaratory in the employer’s application form, that the job applicant has not omitted any information that would be material to the employer being in a position to make a rationale decision regarding the employability of the applicant, in full knowledge of the fact that the employer will have recourse, should material non-disclosure on the part of the applicant come to light.

This was precisely the issue addressed in the Cape Town Labour Appeal Court (“LAC”) judgment in G4S Secure Solutions SA (Pty) Ltd v Commissioner Anthony Ruggiero & others (Case Number CA2/2015).

The employee, a security guard, had been employed by the employer in 1996.  At that time, he was asked in a written application form “have you ever been convicted of a criminal offence?”.  The employee indicated that he had not, and he was subsequently employed by the employer.

However, fourteen years later, on 10 July 2010, the employee applied for an internal promotion, and after a criminal check had been conducted, it was established that the employee had two previous criminal convictions.  One for rape when he was seventeen years old, for which he received six lashes, and another for assault with intent to do grievous bodily harm, for which he paid a fine of R200.00.

The employer responded to these revelations by issuing the employee a notice to attend a disciplinary hearing, alleging “misrepresentation and/or dishonesty concerning an application for employment and/or breach of PSIRA Regulations Code of Good Conduct”.  The employer’s disciplinary code specified that an offence of “dishonesty concerning an application for employment … occurs where information provided in support of an application for employment is subsequently found to be false, and such information has a material effect on the employee/employer trust relationship”.

At the disciplinary hearing, the employee, inter alia, stated that he did not know that he had a criminal record as he had not gone to jail.  The employee was found guilty, and dismissed.

The employee challenged the fairness of his dismissal at the CCMA, originally seeking reinstatement, and subsequently amending his remedy sought, to compensation.  At the CCMA arbitration hearing, the Commissioner was “not convinced that the (employee) contravened the rule” or, as noted in the LAC judgment “that he had misrepresented himself in his 1996 application for employment given that he was not aware that he had a criminal record at the time”.

Importantly, the employee also argued that he could not be found guilty of a contravention of the PSIRA Code of Conduct, as it had only come into effect more than 10 years after his convictions.

The Commissioner continued that he found it plausible that the employee had not willfully misrepresented the facts.  The Commissioner held that the dismissal of the employee was therefore substantively unfair, and held that the employee was to be reinstated, with two-months compensation.

At the subsequent Labour Court review, the Labour Court found it “difficult to understand how the arbitrator could reasonably have concluded the (employee) was unaware of the status of his criminal record and could have denied having any criminal conviction”. However, the Labour Court further held that whilst the employee had committed the misconduct, his dismissal was unfair, and ordered retrospective reinstatement.

The LAC held a different view on this case at the appeal.  The LAC ordered that the appeal was successful, and that the dismissal of the employee was in fact substantively fair.

According to the LAC, “The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer.  The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely”.

The judgment continued that “A conviction of rape and assault is antithetical to employment in the position of a security guard given the nature of that position”.

Finally, the LAC noted that our courts have reiterated that whilst long service is ordinarily a compelling mitigating factor when contemplating a sanction, “there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal … one such act of misconduct is gross dishonesty”.

Strikes and the law

Strikes and the law

The right to strike is recognised in most so-called western democracies, and is considered to be a necessary element of a trade union’s options when a deadlock is reached with an employer on various agenda items such as wage negotiations.

Some commentators would argue that the right to strike is necessary and entirely legitimate, in order to address the in balance of power between employers and employees in collective bargaining, and other dispute areas.  This world view justifies this position on grounds that socio-economic forces disadvantage labour, and therefore warrant a right to strike apply pressure on employers to acquiesce in certain labour disputes.

The right to strike in South Africa is enshrined in the Consitution, which states, at section 23(2)(c) that “Every worker has the right to .. strike”.  It is however, not an unfettered right, and our law obligates trade unions to comply with a mandatory pre-strike procedure before a strike is ‘protected’.

So, what is a strike?  Section 213 of the Labour Relations Act stipulates that a strike “means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory”.

One frequently still hears erroneous references to ‘legal’ and ‘illegal’ strikes.  The notion of ‘legal’ and ‘illegal’ strikes ended approximately twenty-three years ago, with the introduction of the Labour Relations Act, to replace the then ‘old’ Labour Relations Act.

Simply put, strikers will be protected from dismissal if the trade union has complied with two relatively straight forward mandatory pre-strike procedures.  Firstly, the trade union must allow for a conciliation process, typically under the auspices of the CCMA or a Bargaining Council, and thereafter, if the conciliation/mediation process fails to resolve the dispute, give the employer forty-eight hours’ written notice of its intention to strike.

If these two mandatory steps are followed, the strike is ‘protected’, and strikers are then protected from being dismissed for participating in the ‘protected’ strike.  On the other had, should these two mandatory pre-strike steps not be followed, a subsequent strike would be ’unprotected’, meaning that the strikers are not protected from being dismissed for participation in the ‘unprotected’ strike.

Employers typically, and predictably, treat both protected and unprotected strikes as unpaid; no work no pay.

Section 65 of the Labour Relations Act places certain limitations on the right to strike.  For example, striking is prohibited in the event that the issue in dispute can be referred for adjudication by way of arbitration or the Labour Court.

Strikes are also prohibited in so-called essential services.  The International Labour Organisation recognises that it is proper to prohibit strikes in essential services, as strikes essential services would harm the population, and be detrimental to life, health and safety. The Essential services Committee, established per the provisions of the Labour Relations Act, have declared various essential services to include air traffic control blood transfusion services and power generations institutions, such as Eskom.

Even though strikers in a protected strike are protected from being dismissed for participating in the protected strike, they are not protected from being dismissed for strike-related misconduct.  For example, and striker in a protected strike who assaults a non-striker, will still be liable for dismissal on grounds of misconduct.

Strikers participating in an unprotected strike can be interdicted by the Labour Court.  However, the dismissal of unprotected strikers would be unfair if the unprotected strike was in response to some or other unjustified act on the part of the employer.

In the absence of such unjustified employer conduct, unprotected strikers can be disciplined for misconduct, and potentially dismissed if they fail to return to work after receiving reasonable ultimatums from the employer to do so. That said, the mass dismissal of unprotected strikers requires much contemplation given the industrial relations consequences of such a mass dismissal.

What are more commonly referred to as sympathy strikes, are referred to as secondary strikes in the Labour Relations Act.  In order for a secondary strike itself to be protected, it must have the capacity to influence the employer in the primary strike, and the seven days’ written notice must be served prior to the commencement of a secondary strike.

The terrible twins: insubordination and insolence

The terrible twins: insubordination and insolence

You’ll often find the terrible twins, insubordination and insolence, hand in hand.

Employees have a common-law obligation to subordinate themselves to the legitimate authority of their employer, and to the extent that they refuse to do so, they are insubordination.

In Palluci Home Depot (Pty) Ltd v Herskowitz and Others (1989) 10 ILJ 311 (IC) the Court described insubordination as “The offence of insubordination in the workplace has, in this regard, been described by our Courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employer’s authority. Whereas in some cases defiance of an instruction may indicate a challenge to the authority of the employer, this is not so in every case. insubordination may also be found to be present where disrespectful conduct poses a deliberate (wilful) and serious challenge to, or defiance of the employer’s authority, even where there is no indication of the giving of an instruction or defiance of an instruction. It is, therefore, not essential for an instruction to be given or disobeyed to found a challenge to the employer’s authority.”

In Wasteman Group v South African Municipal Workers Union (2012) 8 BLLR 778 (LAC), the Labour Court held that there was a clear distinction between insubordination which did not warrant dismissal and gross insubordination which attracted dismissal.  It has frequently been held that the test for ascertaining whether misconduct amounted to gross insubordination, rather than simple insubordination, was whether the conduct was serious, persistent and deliberate.

The Labour Appeal Court in Humphries and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others (1991) 12 ILJ 1032 (LAC) held that “In our view a disregard by an employee of his employer’s authority, especially in the presence of other employees, amounts to insubordination and it cannot be expected that an employer should tolerate such conduct. The relationship of trust, mutual confidence and respect which is the very essence of a master‑servant relationship cannot, under these circumstances, continue. In the absence of facts showing that this relationship was not detrimentally affected by the conduct of the employee it is unreasonable to compel either of the parties to continue with the relationship… “.

Gross insubordination was also addressed in Polyoak Packaging (Pty) Ltd v Siquibo NO and Others [unreported: case number 236/2008], it was said that “As a general principle it may be stated that the breach of rules laid down by an employer or the refusal to obey an employer’s lawful and reasonable order is to be viewed in a serious light and may in given circumstances even justify summary dismissal. However, the presence of certain prerequisites is required. In the first place [a] it should be evident that an order, which may even be in the form of a warning, must in fact have been given. . . . In the second place [b] it is required that the order must be lawful; an employee is therefore not expected to obey an unlawful order such as to work illegal overtime; and thirdly, [c] the reasonableness of an order should be beyond reproach and will be enquired into: in cases before the court the order or request has sometimes been found to be reasonable and at other times to be unreasonable. In addition, it is required . . . that the refusal to obey must have been serious enough to warrant dismissal”.

Insolence is disrespectful conduct, sometimes described in our courts as “a mere disrespect for the employer (or insolence, impudence, cheekiness or rudeness) which cannot, on its own, constitute insubordination which by its very nature requires disobedience or an outright challenge to authority”; insolence has also been described as repudiation by an employee of the employee’s duty to show respect.   Additionally, “unless the insolence or insubordination is of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal”.

When all is said and done, employers should include recommended sanctions for both insubordination and insolence in their disciplinary codes.  Insolence is generally viewed as a less serious act of misconduct than insubordination.