#YOU_R_FIRED – SOCIAL MEDIA MISCONDUCT

Over the past 5 years or so we have seen a rapid growth in social media use in South Africa whether it be for personal or business purposes. If not already, social media will become one of the most commonly used forms of communication (hence the mobile telephone network companies throwing their toys out). There has been a rapid increase in social media related misconduct ranging from harassment to bringing the company’s name into disrepute.

The difficulty for employers at the minute is that there is no legislation in South Africa that deals with the bounds of social media. More importantly, South Africa’s primary legislation governing our labour laws are silent on the topic. We are forced to look at other sources of law to guide us in dealing with issues related to this contentious topic such as the Constitution of the Republic of South Africa, Consumer Protection Act, case law etc. The balance between the employee’s rights to privacy, freedom of speech and dignity must be weighed against the Company’s rights and interests in dealing with these issues.

Misconduct dismissals, for the incorrect use of social media, may be deemed to be appropriate when a social media post contains derogatory, derisive or disparaging remarks about the employer and brings the employer’s name into disrepute and render the employment relationship intolerable. The question inevitably is whether a harmful remark on social media constitutes a fair reason to dismiss an employee. This is to be determined if the conduct of the employee on social media caused damage or had the potential to cause damage to the employer’s reputation.If that is the case, an employer may be entitled to take disciplinary action against the offending employee.

Other considerations may also play a role in a decision to discipline employees for their online misconduct, such as: whether there was a public outcry over the post and whether this outcry was reasonable; whether the employee was at fault in making the statement; whether the employee’s conduct had irreparably damaged the employment relationship; whether dismissal was a reasonable response to an operational risk; or whether the employee’s conduct was so morally reprehensible that the employer was entitled to dismiss him or her.

In Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA) and Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA):the Commission for Conciliation, Mediation and Arbitration (CCMA) decided that the employees, in these two matters, were dismissed fairly as a result of derogatory Facebook status updates. The employees had not restricted their Facebook privacy settings and the updates could be viewed by anyone, even those with whom they were not ‘friends’ on the website. The CCMA took the view that the employers were 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). The commission decided that the employer was entitled to access the wall posts as the employees had ‘open’ Facebook profiles without infringing their rights to privacy.

Companies are urged to develop social media policies which provide clear guidelines and rules regarding acceptable and unacceptable use of social media by its employees and the consequences that follow.

(Remember: ALWAYS FOLLOW A FAIR PROCEDURE)