The explosion of social media platforms, and their usage, has unsurprisingly spawned a fast growing plethora of workplace social media ‘e-misconduct’ misconduct.
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 Facebook, Twitter and WhatsApp.
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.
For example, my own firm was recently involved in a disciplinary hearing in which the employee had been summoned to a disciplinary hearing for having a WhatsApp status which read “F….. ……………. (company name), and the whole of …………. (company name) sucks …”.
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”.
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.
So, employees, exert considerable care when tempted to slag-off your employer on social media
Follow Tony on Twitter at @tony_healy.