As there are 2.01 billion active users on Facebook, 700 million accounts on Instagram and 328 million individuals making use of Twitter, plus the myriad other social platforms, it is evident that an employer should be concerned about the social media conduct of their employees.
Companies are relying on social media for marketing, news, advertising as well as customer relationship management, and the conduct of employees can have a negative impact on a company’s reputation.
It is important to note that companies run the risk of vicarious liability for discrimination, harassment and defamatory statements on social media if an employee’s conduct occurs “during the course and scope of his employ”, and therefore employers should mitigate their risk by creating a social media policy and consequently informing their employees of such policy.
It is important that employees should understand what constitutes inappropriate behaviour on social media together with the consequences of such inappropriate behaviour.
In drafting such a social media policy, employers should be wary of restricting their ability to adequately discipline employees for online misconduct.
Dismissal due to misconduct on social media
The law in South Africa with regards to social media conduct is underdeveloped. Our courts follow the precedent set by tribunals and courts in the UK as we have no reported Labour Court judgments in South Africa dealing with dismissals based on online misconduct outside the workplace.
According to many UK judgments there is no need to prove actual damage to the reputation of the company, only that the remarks have the potential to cause reputational damage.
Whether an employee’s misconduct on social media is actionable by the employer is founded on the following two principles:
- Impact of misconduct on the working relationship between employer and employees or amongst employees – the mere fact that the employee has left the workplace and/or acting in his private capacity outside working hours is no defence.
In Nyambezi v NEHAWU (1997) 1 BLLR 94 (IC)the adjudicator found that after hour’s consumption was as good as consumption during working hours and was found to have misconducted himself at a union congress.
- Inherent basis of trust and good faith of a working relationship – an action by an employee which leads to the breakdown of such trust and good faith may justify dismissal.
As stated by Du Toit, et al, in Labour Relations Law – A comprehensive guide: “The cardinal test is whether the employee’s conduct has destroyed the necessary trust relationship or rendered the employment relationship intolerable.”
The conclusion is that even though the contents posted by the employee on social media is done on a private device by not using the employer’s network and/or systems and even done from the privacy of the employee’s own home, the employee can validly be disciplined should the contents destroy the trust relationship.
The employee can be found guilty based on having the intention or effect of breaking the trust relationship between the employer and employee and not necessary on breach of a company’s policy.
Direct and indirect breakdown of such trust relationship
The breakdown of such trust relationship can be divided into direct- and indirect breakdown.
In the instance of direct breakdown, the employee would have had to make direct reference to his employer or colleagues in social media posts, which will obviously have an impact on the day to day working relationship.
It was found in the case of Van Zyl v Duvha Open Cast Services (1995) 1 ICJ 8.12.11that a fight between colleagues outside working hours resulted in a strained working relationship and the inability of a continued employment relationship, which was sufficient to justify dismissal.
In Dewoonarain v Prestige Car Sales (Pty) Ltd t/a Hyundai Ladysmith (2014) (MIBC) an employee posted a racist comment on Facebook regarding the employer and his co-employees, whereupon the arbitrator found that the dismissal was substantially fair but procedurally unfair.
Indirect breakdown will occur where an employee does not post any content about his employer and/or colleagues, but posts content of a 3rd party or segment of society, for political, religious, racial or other reasons.
If an employee, identified as being connected to an employer, behaves in such a way to reasonably lead the employer to believe that third parties may change their perspective about the company, such conduct will be relevant.
In Salstaff obo Magubane v South African Airways (Pty) Ltd (2002) 11 CCMA,a flight attendant employeewas dismissed after being drunk while on a flight as her behaviour damaged the name of the company and caused embarrassment.
Employee defences that are unlikely to be successful
An employee will most likely not be successful with the following defences used to justify his inappropriate behaviour on social media:
- The right to privacy – The right to privacy is not absolute. The constitutional court was clear in Gaertner & Others v Minister of Finance & others 2014 (1) BCLR 38 (CC) that “as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks.”
- The right to freedom of expression – The right to freedom of expression is likewise not absolute. The common law right to a good name and reputation falls in the broader right to dignity and will usually enjoy preference over freedom of expression. The Van Zyl case as referred to earlier can be used as an example here.
- Protected Disclosure Act – Our courts have taken the view that the internet is not a suitable forum for disclosure of private information and/or defamatory remarks of a company by an employee or ex-employee.
- “I did not mean what I typed…”
- “I am not proficient with technology…”
Individuals need to be mindful of their words and actions on social media platforms as they may have serious repercussions in the workplace.
Our Labour and Employment Law team offers considerable expertise in matters relating to employer/employee negotiations, conducting disciplinary enquiries and the drafting of necessary legal agreements such as a company’s social media conduct policy. We always aim to help resolve all employment related disputes in an effective and commercially sensible manner.
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