Careless use of social media has consequences

Social media has become part of our day to day lives and millions of South Africans spend a large amount of time on these platforms. While social media can be used effectively for business and has many positive uses, using social media carelessly in the employment context may have far-reaching consequences.

Many South Africans are familiar with their right to freedom of expression and know that this right is protected in terms of our Constitution, however what many do not know is that there is a limitation to this right. The right to freedom of expression is expressly limited to exclude “advocacy of hatred”, and further in terms of the Constitution’s own limitation clause, this right needs to be balanced against other factors such as human dignity, equality, and freedom. Contrary to popular belief, South Africans do not have the right to say whatever idea pops up in their head and then assert their right to freedom of expression.

For the purposes of this article we shift our attention to the employment relationship in particular. After all, a person who is not responsible to anyone and only concerns themselves with their own reputation can take risks with the statements they make on social media without attracting some form of penalty. This is, of course, different in the employment context, where making an unacceptable statement online about your employer may very well lead to serious disciplinary action being taken, in line with that specific employer’s policy on social media usage. 

The duty of good faith that an employee has to their employer is a well-known principle in the employment relationship. It is such a well-known principle that it does not even need to be expressly stated in the employment contract, and it further follows that should an employee violate this general duty of good faith, discipline will follow.

An employee that goes on a social media platform and that bad mouths their employer, their clients or any other stakeholders could easily be seen as an employee that has violated the general duty of good faith they owe to their employer.

In Dewoonarain v Prestige Car Sales (Pty) Ltd t/a Hyundai Ladysmith (2014) [MIBC] an employee posted a racist comment about their employer on social media. The employer considered the remark made by the employee to be directed at them because its directors and many of its employees are Indian. The employee was charged with bringing the company name into disrepute in that the employee posted derogatory remarks on a Facebook page. The employee challenged the procedural fairness of her dismissal, claiming that she was not provided with an explanation as to what was meant by the phrase “bringing the company’s name into disrepute” and was also not permitted to provide submissions in mitigation. The employee also argued that her post was protected due to her constitutional right to freedom of expression. 

The employee’s reliance on her right to freedom of expression failed as the arbitrator pointed out that the right is not absolute and went on to state that, “making unjustifiable and irresponsible remarks on social media had … the potential for harm to the business” of the employer”. Where the employer faulted, however, was in not following its own internal procedure which permitted employees to submit mitigating factors during the enquiry. The employer did not grant the employee this chance and in light of this, the arbitrator found the dismissal was substantially fair but procedurally unfair.

In National Union of Metalworkers of South Africa obo Zulu v GUD Holdings (Pty) Ltd (2015) 24 DRC an employee posted “In this company, employees are taken for granted. I wish I could bomb and burn the Company including management.” The employee was subsequently issued a notice to attend a disciplinary inquiry and then dismissed for charges relating to gross misconduct.  The employee then challenged the fairness of the dismissal at the bargaining council’s dispute resolution centre and claimed that the post should not be taken literally and that the post did not reflect something that he would do as he had no access to a bomb. The employee further argued that he thought that the post would only be read by his friends as “it just came out of the blue without me thinking about it” and he did not realise that the comment would be perceived as a threat.

The Commissioner presiding over the matter found that the employee’s defence for his actions – that he did not think before posting – was improbable and the more probable interpretation was that the employee felt so strongly about the issue that if he had the means, he would “burn and bomb” the employer. The Commissioner therefore upheld the dismissal.

Both of the above matters relate to dismissals that occurred for conduct on social media relating to the employment of the transgressor. Can an employee then be dismissed for conduct on social media even if the remark is not related to their employment?

There are no reported Labour Court judgments in South Africa which deal with the dismissals related to online misconduct outside the workplace. Our courts are likely to look to the precedent set by the courts in the UK and the decisions by the UK courts will set the trend on how our courts deal with this new but rapidly advancing issue. According to many of the UK judgments relating to social media misconduct, the courts have held that it is not necessary to prove actual damage to the reputation of the company, but that it will be sufficient to show that certain remarks have the potential to cause reputational damage to the employer.

To conclude, almost every employee of the company becomes a brand ambassador for the company as they in some way or another display their association with the company on a public forum. For instance, employees who update their Facebook or LinkedIn profiles to indicate their employment with the company, are much the same as employees who deal directly with customers and the public as outlined in the course and scope of their employment. 

It is recommended that employer’s implement social media policies which deal with all eventualities relating to online behaviour of their employees and that further ensures the protection of the company’s reputation. In addition, employers are advised to exercise caution when taking steps to discipline employees for social media misconduct. The charges against the accused employee should be expertly formulated.

Do not hesitate to contact Invictus on 0861 737 263 should you require assistance with disciplinary inquiries or the drafting of your workplace policies and procedures.