+27 21 422 1323 info@abgross.co.za
  • Facebook
  • Twitter
  • Instagram
  • Facebook
  • Twitter
  • Instagram
Abrahams & Gross Attorneys
  • Home
  • Team
    • Basilio de Sousa
    • Juan Smuts
    • Jeremy Simon
    • Henno Bothma
    • Nicholas Hayes
    • Marita Swanepoel
    • Wesley Scheepers
    • David Kagan
    • Farzanah Mugjenkar
    • Heynes Kotze
    • Simone Da Camara
    • Tamsyn Knight
    • Corinne Petersen
  • Services
    • Commercial Recoveries
    • Conveyancing and Property Law
    • Corporate and Commercial Law
    • Criminal Law
    • Family Law, Divorce and Matrimonial Law
    • Immigration Law
    • Insolvency Law
    • Labour and Employment Law
    • Litigation and Dispute Resolution
    • Maritime and Shipping Law
    • Notarial Deeds
    • Regulatory Law
    • Trusts and Estates
  • Calculators
  • Conveyancing Resources
  • Resources
  • Careers
  • News
  • CSI
  • Contact
Select Page

Disciplinary action based on an employee’s social media conduct

Jan 17, 2023 | Labour and Employment Law

Disciplinary action based on an employee’s social media conduct

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 adage of “think before you speak and think twice before you write” could be extended to “think thrice before you share your opinions on social media.

It is crucial for an employer or company to have a clear social media policy that all employees are aware of. If you need any assistance, 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

.

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.

Recent Articles

  • City of Cape Town small-scale embedded generation (SSEG) requirements
  • Sections of the Divorce Act declared unconstitutional
  • Is your Will valid?
  • The importance of proper recordkeeping in commercial recoveries
  • The validity of forfeiture clauses in South African law: Balancing buyer and seller interests in agreement cancellations
  • Can foreigners own property in South Africa?

Categories

  • Commercial Property Law (3)
  • Commercial Recoveries (7)
  • Conveyancing and Property Law (38)
  • Corporate and Commercial Law (11)
  • Criminal Law (8)
  • Family Divorce and Matrimonial Law (28)
  • Heritage (1)
  • Immigration Law (6)
  • Insolvency Law (6)
  • Labour and Employment Law (20)
  • Litigation and Dispute Resolution (32)
  • Notarial Deeds (2)
  • Regulatory (6)
  • Trusts and Estates (8)

Related Articles

Related Articles

Related Articles

Criminal Law

  • Evicting a tenant
    Eviction notice for a tenant
  • Driving under the influence – a sobering thought
    Driving under the influence
  • Getting a criminal record expunged
    COVID-19 and the national lockdown will leave many South Africans unemployed and some will have a criminal record from breaking lockdown regulations.
  • Euthanasia: Legal ambivalence
    Euthanasia is not protected by the South African Constitution.
  • Constitutional Court groundbreaking judgment: legalising cannabis in South Africa
    The Constitutional Court ruled that cannabis is legal in South Africa.

Debt Collection

  • The importance of proper recordkeeping in commercial recoveries
  • What to do when a client owes you money
    debt recovery for a business
  • Commercial recoveries: choosing the right court
    Commercial debt recovery enables a business to recover outstanding debt, plus interest and incurred costs from a debtor.
  • Emoluments attachment orders
    An Emoluments Attachment Order is a debt collection process whereby the judgment creditor can deduct part of the salary of the judgment debtor.
  • How the National Credit Act impacts the in duplum rule
    Debtors must be mindful of debts and the implications of the in duplum rule.

Family, Divorce and Matrimonial Law

  • Sections of the Divorce Act declared unconstitutional
  • Relocation and obtaining consent to travel with your child
    You must have consent to travel with child before relocating or going on holiday.
  • The Hague Convention and international child abduction
    child abduction
  • Are you in an abusive marriage or relationship?
    Abusive relationship
  • Reasons for the breakdown of a marriage
    Grounds for divorce in South Africa

Litigation and Dispute Resolution

  • Body corporate disputes: The role of the Community Schemes Ombud Service (CSOS)
  • Effective strategies for resolving disputes in homeowner’s estates
  • Can someone live in my house for free? The state of evictions in South Africa
  • The importance of having a decent lease agreement
  • The benefits of arbitration

Insolvency Law

  • How to liquidate a company in South Africa and the effect on shareholders
    liquidating a company
  • Rehabilitation after sequestration
    Rehabilitation enables a person who has been sequestrated to make a fresh start, free from debts and restrictions.
  • What does it mean to be sequestrated?
    Sequestration is defined as the surrender of an individual’s estate to the High Court under the governance of the Insolvency Act.
  • How does a company get wound up?
    In Insolvency Law, we often get asked: how does a company get wound up?
  • The body corporate, unpaid levies, sequestration and the rights of creditors
    The body corporate must prove that a sequestration order will be advantageous to the entire body of creditors.

Labour and Employment Law

  • Disciplinary action based on an employee’s social media conduct
    Disciplinary action based on an employee’s social media conduct
  • Solidarity Trade Union and Dis-Chem’s transformation policy
  • Unfair labour practices in the workplace
    Unfair labour practices in the workplace
  • How Labour Law treats racism in the workplace
    The consequences pertaining to racism in the workplace may be severe should an employer or employee be found guilty.
  • Impact of COVID-19 on the workplace
    As a direct result of the lockdown, many businesses are currently unable to conduct operations.

Litigation and Dispute Resolution

  • Body corporate disputes: The role of the Community Schemes Ombud Service (CSOS)
  • Effective strategies for resolving disputes in homeowner’s estates
  • Can someone live in my house for free? The state of evictions in South Africa
  • The importance of having a decent lease agreement
  • The benefits of arbitration

Corporate and Commercial Law

  • The validity of forfeiture clauses in South African law: Balancing buyer and seller interests in agreement cancellations
  • Conflicting interests between directors and companies
  • Protection of minority shareholder rights in South Africa
  • The importance of having a proper shareholders agreement
    A shareholders agreement details how a company should be operated.
  • How to liquidate a company in South Africa and the effect on shareholders
    liquidating a company

Criminal Law

  • Evicting a tenant
    Eviction notice for a tenant
  • Driving under the influence – a sobering thought
    Driving under the influence
  • Getting a criminal record expunged
    COVID-19 and the national lockdown will leave many South Africans unemployed and some will have a criminal record from breaking lockdown regulations.
  • Euthanasia: Legal ambivalence
    Euthanasia is not protected by the South African Constitution.
  • Constitutional Court groundbreaking judgment: legalising cannabis in South Africa
    The Constitutional Court ruled that cannabis is legal in South Africa.

Insolvency Law

  • How to liquidate a company in South Africa and the effect on shareholders
    liquidating a company
  • Rehabilitation after sequestration
    Rehabilitation enables a person who has been sequestrated to make a fresh start, free from debts and restrictions.
  • What does it mean to be sequestrated?
    Sequestration is defined as the surrender of an individual’s estate to the High Court under the governance of the Insolvency Act.
  • How does a company get wound up?
    In Insolvency Law, we often get asked: how does a company get wound up?
  • The body corporate, unpaid levies, sequestration and the rights of creditors
    The body corporate must prove that a sequestration order will be advantageous to the entire body of creditors.

Litigation and Dispute Resolution

  • Body corporate disputes: The role of the Community Schemes Ombud Service (CSOS)
  • Effective strategies for resolving disputes in homeowner’s estates
  • Can someone live in my house for free? The state of evictions in South Africa
  • The importance of having a decent lease agreement
  • The benefits of arbitration

Maritime and Shipping Law

Regulatory Law

  • The Voetstoots clause and what it means for property buyers and sellers
  • Latent defects: when is the Consumer Protection Act applicable?
    When a latent defect is present, it means that the product lacks the quality promised in terms of the sales agreement.
  • The Voetstoots clause and property sale agreements
    The Voetstoots clause means that property is sold 'as is'.
  • Restaurants: can they charge a non-refundable deposit for reservations?
    Restaurant booking fees are legal and non-refundable within certain conditions.
  • How the National Credit Act impacts the in duplum rule
    Debtors must be mindful of debts and the implications of the in duplum rule.
  • Facebook
  • Twitter
  • Instagram
© 2023 Abrahams & Gross Inc. All Rights Reserved. Legal Notice | PAIA | Privacy Policy | BEE Certificate