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  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.