Employees are often under the impression and misconception that their social network sites are private and detached from their employment. These employees may feel secure with the guise offered by the divide between work and personal life, especially during the festive season when most take leave and spend less time in their working environment. That said, dismissals on account of social media misconduct are becoming more and more evident.
An Employee’s Offensive Comments and the Consequences for EDCON
In the matter between EDCON Limited v Cantamessa and Others, the Labour Court found that a racist comment made by an employee while on leave constituted a dismissible offence. The Labour Court crystallised the principle that it is within an employer’s right to discipline employees for misconduct outside the workplace, provided there is a connection between the employee’s misconduct and the employer’s business.
In this particular case, the employee had identified herself as a specialist buyer for EDCON on her personal social media account, wherein she posted comments referring to former president Jacob Zuma to the effect of:
“…and listening to these stupid f@!k1ng monkeys running our country and how everyone makes excuses for that stupid man we have to call a president…”
The employee posted this comment just before a cabinet reshuffle in December 2015. These comments that the employee posted received a lot of attention on social media, and there was a formal complaint laid by one of the employer’s customers against the employee.
A Balancing Act
The Labour Court considered the established principle that employers are precluded from taking disciplinary action against employees for misconduct outside the workplace and their ordinary hours of work. It is important to note – the court drew a distinction, in this particular context, the actions of the employee received the attention of the public and impacted the reputation of the employer negatively, as the customer base of the employer was primarily black people.
The employer was associated with the employees’ conduct which opened up the employer to reputational damage.
It is important to note that an employee does not need to identify themselves as an employee of a specific company for them to come into conflict with the employer’s disciplinary policies and code of conduct. In Dewoonarain v Prestige Car Sales (Pty) Ltd t/a Hyundai Ladysmith (2014) [MIBC], the employee made racist remarks against their employer and colleagues without mentioning the employer’s name.
The employee argued that the employer ought to prove how the employee’s comments could bring the company’s name into disrepute, where its name was not mentioned. The arbitrator found that the issue was whether a reasonable inference could be drawn from the remarks that they were directed at the employer, thus creating a connection between the employee’s misconduct and the business of the employer.
Implications for Employees and Employers in Liability and Reputation
Social media misconduct not only opens the employee to dismissal but also exposes employers to liability for discrimination, harassment and defamation claims. In the case, Pehlani v Minister of Police (9105/2011)  ZAWCHC, the High Court held that an employee doesn’t need to be acting within the course and scope of their employment to fall foul, only if a connection can be drawn between the misconduct of the employee and the employer’s company.
Employers must encourage employees to be watchful of the company’s social media policies and procedures, and more importantly, their social media conduct and failure to adhere to these policies and procedures are likely to have devastating effects for both the employer and the employees.
Please feel free to contact our offices at 0861 737 263 should you have any queries or require any assistance with your social media policies or for us to conduct your disciplinary inquiries.