SOCIAL MEDIA AND WORKPLACE DISMISSALS
Over the past decade social media has waged a war within the private lives of individuals and their working life. It has become increasingly difficult to separate the two and keep an employees’ private life from the scrutiny of their employer. An employee can often represent the face of the company, its values, standards and work culture and will open themselves up to increased risk by not being cautious about the manner in which their personal life is conducted on social media platforms.
Companies should attempt to mitigate risks by developing social media policies combining the Constitution, employment law and the common law in order to educate the employees about the way in which to conduct themselves on social media platforms.
The number of dismissals for gross misconduct have increased due to social media platforms. The difficulty arises when an employee’s right to privacy is outweighed by the harmful effects of freedom of expression. Every person is entitled to the right of privacy which is entrenched in section 14 of the Bill of Rights, at common law the breach of a person’s privacy constitutes an injuria. It occurs when there is an unlawful intrusion on someone’s personal privacy or an unlawful disclosure of private facts about a person.
Section 186 of the Labour Relations Act defines a dismissal as meaning:
- an employer has terminated a contract of employment with or without notice
- an employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;
- an employer refused to allow an employee to resume work after she- took maternity leave in terms of any law, collective agreement or her contract of employment; or
- an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or
- an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
In National Union of Food, Beverage, Wine, Spirits and Allied Workers Union obo Arendse v Consumer Brands Business Worcester, a Division of Pioneer Foods (Pty) Ltd a machine operator was dismissed for making derogatory remarks about the respondent employer on his Facebook page.
The employee had not restricted access to his page, and therefore he could not rely on his right to privacy. If the postings are defamatory, as they were and the employer gains access to them by legitimate means, disciplinary action can be pursued. In deciding whether the dismissal was substantially and procedurally fair the court referred to Schedule 8 of the Code of Good Practice of the Labour Relations Act. In a dismissal for misconduct, one must consider whether or not the employee contravened a rule in the workplace and if so: whether the rule was valid and reasonable; whether the employee was aware or could have been expected to be aware of the rule; whether the rule was consistently applied; and whether the dismissal was the appropriate sanction for the contravention of the rule.
Sedick and Another v Krisray (Pty) Ltd  and Fredericks v Jo Borkett Fashions the employees in these two matters were dismissed as a result of derogatory Facebook status updates. They challenged the fairness of the dismissals at the CCMA. In both cases the CCMA found that the employees’ were fairly dismissed as their privacy had not been infringed when their employers accessed their Facebook posts. The employees had not restricted their Facebook privacy settings and the updates could be viewed by anyone, even those with whom they were not ‘friends’ on the website. The CCMA took the view that the employers were entitled to intercept the posts in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (RICA). The commission decided that the employer was entitled to access the wall posts as the employees had ‘open’ Facebook profiles.
In the above mentioned cases the privacy of the employee’s was not restricted and allowed the employers to intercept the postings legitimately. From the recent case law we are able to establish that the CCMA is not taking social media misconduct lightly and is not falling for employees’ online privacy and special privilege.
Should your company need advice about developing a social media policy, contact M Van Heerden Attorneys today.
 Financial Mail v Sage Holdings 1993 (2) SA 451 (A).
 Act 66 of 1985 hereinafter the LRA.
  7 BALR 716 (CCMA)
 (2011) 8 BALR 879 (CCMA)