Social media is used by many to express their own personal and private views on various topics. As much as freedom of expression, including freedom of speech is a constitutional right, there are reasonable limitations thereto which must be observed especially on social media platforms.
Many employees have recently come under scrutiny by their employers for their online activity and in some instances ended up being dismissed due to social media misconduct.
Labour Court rules on a racist comment
Recently the Labour Court, in the case of Edcon Limited v Cantamessa and Others, handed down a firm judgment by ordering that a racist comment made by an employee, namely Cantamessa, while on leave resulted in a dismissible offence.
The Labour Court confirmed that an employer may pursue disciplinary action against an employee for misconduct, which occurred outside the workplace, on condition that the employer establishes a connection between the employee’s misconduct and the employers business.
The employer’s jurisdiction is limited but there are exceptions
The Labour Court began by examining the general rule that an employer has no jurisdiction or competency to discipline an employee for conduct unrelated to their work, and conducted after working hours, away from the workplace.
However, the Labour Court turned to other cases such as Hoechst (Pty) Ltd v Chemical Workers Industrial Union and Another, and the case of Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others, to correctly provide that there is an exception to the general rule.
Employee behaviour can be linked to reputational damage
Cantamessa was a senior employee employed by Edcon as a specialist buyer, which was publically displayed and recorded on her Facebook account. The connection between Edcon and Cantamessa’s Facebook profile was the fact that she identified herself as being employed by Edcon on her Facebook account. Based on her relationship with Edcon, the Labour Court concluded that Cantamessa had a duty to avoid being controversial in the public eye, as the success of Edcon’s business is greatly related to how Edcon advertises and markets themselves to the general public.
Cantamessa’s racist comment stirred up hatred based on race, resulting in incitement to cause harm. Therefore, her comment was not protected under the right to freedom of expression, and her misconduct opened Edcon to reputational damage.
Contravening disciplinary policies and codes of conduct
Furthermore, it is important to observe that an employee does not necessarily have to identify their employment status on their social media account in order to be in contravention of disciplinary policies and code of conduct.
This was decided in the case of Dewoonarain v Prestige Car Sales (Pty) Ltd t/a Hyundai Ladysmith. Here the arbitrator found that if a reasonable inference can be drawn from the remarks made by an employee on social media, that the remarks were directed at the employer, a connection between the employee’s misconduct and business of the employer is established.
Social media policies are important for both employer and employee
In conclusion, social media conduct is not without limitation. Employees could be dismissed and it opens employers up to claims of vicarious liability for defamation and harassment. Employees must take into consideration the company’s social media policies and procedures as it is clear that an employee may be disciplined for conduct outside of working hours, including social media conduct.
Speak to a Labour Law expert
An employee should always be mindful of what they post and share online. The old adage of “think before you speak, think twice before you write” could be extended to say “think thrice before you share your opinions on social media.” It is also crucial for an employer or company to have a clear social media policy that all employees are aware of.
If you need any assistance with matters related to employee/employer arbitration, disciplinary policies and hearings, dismissals, codes of conduct or social media policies, please contact our experienced Employment and Labour Law team.
For Labour and Employment Law expertise
Wesley Scheepers wesley@abgross.co.za
Jeremy Simon ……… jeremy@abgross.co.za
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Disclaimer
The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.