Fired? For what I said on Facebook?

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MBOMBELA – The dismissal of employees following controversial online statements has become a hot topic of discussion in South Africa. Local companies have introduced social media law policies, which dictate how their employees should behave while expressing themselves on social media platforms.

But what happens if you do not? Will your boss be allowed to fire you?

Although each case is judged on its own merits, you could easily end up without a job after making a racist, sexist or otherwise unacceptable post that places your employer or company in disrepute.

A study of legislation, jurisprudence, the Commission for Conciliation, Mediation and Arbitration (CCMA) decisions and South African legal principles provided Lowvelder with some answers to readers’ most frequently asked questions on the topic:

• If I make a derogatory comment referring to my boss or company on social media, can I be fired?

Yes. In Sedick and another v Krisray (Pty) Ltd in 2011, derogatory comments were published on social media about the owner of the company the employees worked for. The Commissioner of the CCMA found that the employees had rightfully been fired. Since then, a number of CCMA cases with similar facts were handled accordingly.

• And if I don’t call by boss or the company by name?

You can still be fired if the reasonable person can connect your boss or the company to the derogatory statement.

• What about controversial statements in general?

When posting online, keep in mind that you have an audience and are an ambassador for the brand you work for. By posting swear words, discriminatory posts oruntasteful remarks, you run the risk of endangering your relationship with your employer and clients.

• Can my online conduct after work hours impact my employment?

No South African court has ruled that no employee be dismissed following after-hours online conduct. However, you may be considered in a “24/7” relationship of trust with your employer in terms of the following:

In 1995, two colleagues had a fight outside of working hours, which resulted in a strained working relationship and the inability of a continued employment relationship. One of the employees was dismissed and a court case followed. In Van Zyl vs Duva Open Cass Services, it was ruled that the dismissal had been fair.

In 1997, the Industrial Court touched on this issue in the case of Nyambezi vs Nehaqu. Nyambezi had made himself guilty of misconduct by consuming alcohol after hours at a work congress.

The presiding officer said that:

The relationship between an employer and employee is one of trust. If it could be proved that the employee’s behaviour ruined this relationship, his dismissal would be fair.

For the purposes of this case, he considered Nyambezi to be an employee for 24 hours of the day, while Nyambezi was at the congress.

Courts in the United Kingdom and Canada have confirmed the dismissal of employees following posts made after-hours. In terms of the constitution, South Africa’s courts may follow their lead.

• Will my right to privacy protect the statements I make online?

Not necessarily. In the Sedick case mentioned above, it was ruled that the Internet is a public domain. The presiding officer added that, if a Facebook user does not block access to information on his profile, it may be accessed by anyone. “If employees wish their opinions to remain private, they should refrain from posting them on the Internet,” he said.

• Can anyone (including my employer) visit my social media account and intercept information?

In terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, this may be done as long as the information is not used to commit an offence.

 

  • Why do companies invest in social media policies these days?

The Labour Relations Act and the Act’s Codes of Good Practice require that four things must be established before an employee can be fired for misconduct:
1. There was a rule – a social media policy, in this case.
2. The employee was aware of the rule.
3. The employee broke the rule.
4. Dismissal is the appropriate sanction.
Social media policies do not only make employees aware of their responsibilities as social media users, but also lay down a set of rules, thereby aiming to satisfy the requirements mentioned in points (1) and (2).

ALSO READ: The year’s social media drama (so far) – how NOT to be an offender

  AUTHOR
Helene Eloff
Court Reporter

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