South Africa has walked into a veritable social media storm in the early parts of the year, with employers increasingly being placed in the difficult position of having to decide whether or not to take action against employees for their behaviour online.
While it may not be the conventional nature of an act of misconduct, the age of social media and technological advancement has changed the way in which we communicate and engage with other individuals and with the public.
Samiksha Singh, Director in the Employment Practice, Cliffe Dekker Hofmeyr, says that in the employment context, while there are several cases which confirmed the fairness of dismissals of employees who made disparaging comments about their employers or colleagues on social media, the recent events raise the question as to whether an employee can be appropriately disciplined and possibly dismissed for making inappropriate remarks on social media even if the remark is not related to his or her employment.
Essentially, the question is whether inappropriate conduct on social media, which is not related to the employment of the author, constitute misconduct outside the workplace.
According to Ms Singh it is highly likely that SA’s labour courts, in addition to following the UK case law on social media misconduct, will follow SA’s own case law in respect of misconduct committed outside the workplace.
The SA Labour Court recently upheld the dismissal of a senior employee for misconduct outside the workplace as his dishonest conduct was viewed as destructive to the heart of the employment relationship. And in the UK, the UK Employment Tribunal said there was no reason why an employer should treat misconduct arising from the misuse of social media in any way different to any other form of misconduct.
“In the age of social media, the line between business and personal interests is blurred and it has become increasingly important to evaluate the potential consequences - not only on your personal profile, but also on the profile of the brand, institution or company that you associate yourself with,” says Ms Singh.
In his South African Social Media Landscape Report, 2014, Arthur Goldstuck, states that: "Employees active in social media are becoming brand ambassadors for their respective brands, often outperforming the brands themselves on social media…"
According to Ms Singh, it is important to note that the “brand ambassadors” of a company are not confined to a list of the marketing and public relations employees of the company, but every employee of the company becomes a brand ambassador as they in some way or the other publicly display their association with the company.
For instance, employees who update their Facebook or LinkedIn profiles to indicate their employment with the company, display their association with and are brand ambassadors of the company much in the same manner as employees who deal directly with customers and the public as outlined in the course and scope of their employment.
The problem is that posts can be shared instantaneously and screen shots of posts are generally saved for future use. Therefore the ability to delete unsavoury posts and even the author’s account, does not create a guarantee that the actual post will be deleted from virtual or actual reality.
“The moment that a comment or remark is posted online, there is no turning back. So while employees should ensure they positively influence public perspective in order to take the brand of their employer forward, employers must take proactive steps to ensure that they are protected from any actual or potential reputational damage caused by inappropriate or unsavoury remarks made by their brand ambassadors,” says Ms Singh.
Ms Singh advises that employers should implement stringent social media policies that deal with all eventualities in relation online behaviour. It is no longer sufficient to only deal with workplace issues as behaviour outside the workplace can have a negative impact on the employment relationship and have the ability to cause potential or actual reputational damage to the company.
Both Preeta Bhagattjee and Christoff Pienaar, Directors in the Technology Media and Telecoms Practice, Cliffe Dekker Hofmeyr, agree that it is imperative that stringent social media policies are implemented in order to adequately cater for the era of advancing technology. In a time when online access is a simple tap on an icon on your smartphone, the regulation of the conduct of employees must also drastically change.