Careless use of social media has been in the forefront of the news in the last few weeks. Famous politicians, boisterous teenagers and disgruntled employees have not been discerning about what they have posted on the Internet. It does not matter what particular social media forum has been used, the point is that the consequences of their actions have been more far-reaching than they ever could have imagined in the second that they clicked the "post" option.
Although the South African public may think that their right to freedom of expression is fiercely protected in terms of our Constitution, they do not seem to be as well aware of the limitation to that right. First off, that right is expressly limited to exclude "advocacy of hatred" and secondly, in terms of the Constitution's own limitations clause, needs to be balanced against various factors including human dignity, equality and freedom. In other words, unlike some other countries, South Africans do not have carte blanche to say whatever pops into their heads and then assert their right to freedom of expression
There is little doubt that the policing of an individual's use of social media becomes particularly relevant in the employment relationship. After all, if a person is responsible to no-one and only has to concern him or herself with personal reputation, they can take greater risks with their statements without attracting a sanction. Not so with employees. Although the social media landscape may be a new one, the principles of employment law still apply to the employment relationship.
One of the cornerstones of the employment relationship is the duty of good faith that an employee has to his or her employer. That is an obligation that does not need to be enunciated in an employment contract and it follows that if an employee behaves in a manner which violates that duty, discipline will follow. An employee's tirade on a social media platform about their employer, their client or customer or indeed their distasteful views about any subject in general could easily violate that duty of good faith.
To date, there have been no Labour Court cases dealing with dismissals of employees for social media infractions. There are however many CCMA and Bargaining Council awards which grapple with the subject. There is no doubt that eventually the Labour Court will have an opportunity to develop social media law in the employment law context. A recent Bargaining Council award in Durban clearly demonstrates the serious need for the development of expertise in social media law for lawyers and employers alike.
In R v VL in the NBCRFI Bargaining Council (RFBC 35099 31 August 2015) an employee challenged the fairness of her dismissal when her employment was terminated for gross misconduct on the basis of a post that she had written on Facebook. In the post she had alleged that she had been retrenched by a senior employee of the company after 20 years of service without any prior notification.
The employer dismissed her on the basis that the post was factually incorrect, the named employee had not been involved in the retrenchment at all and had been defamed on a public forum and the post had caused disruption in the workplace. Furthermore the name of the company had been brought into disrepute based on information that was misleading.
It was common cause that the senior employee had seen the post on Facebook and was very angry. It was also common cause that the dismissed employee removed the post from Facebook the next day. Her evidence was that she had not been aware that "...others would also see her message..." and that the removal was in response to messages that she had received "from others" the next day. She did not specify who the "others" were. She alleged that she regretted the posting, that she had attempted to apologise to the impugned person and that she was not aware of any negative consequences that had arisen as a result of it.
In analysing the evidence and arguments the commissioner stated that the central issue was whether the postings that the employee had made on Facebook constituted serious misconduct and justified dismissal. In his ruling he stated that one had to consider the context in which the comments were made. He then examined the retrenchment procedure that the company had undergone with her in detail. According to the commissioner the post was "...an expression of hurt that the applicant felt rather than a broadside attack on the integrity of the respondent." He also stated that "... the inaccuracy of the statement is of little or no relevance..." and that "...(t)here was no evidence that the company had suffered any reputational damage..." He went on further to say that "...Retrenchment is a traumatic event in the working life of any individual... Support from friends and family is most needed at these times and the applicant's posting on face book (sic) was an attempt at receiving support..." To the commissioner it was no matter that the company had requested that the employee keep her retrenchment confidential and he found that "...it seems unfair that applicant, during such a traumatic time, should be prevented from discussing the matter with her friends or others who could offer support..." He found in favour of the employee and reinstated her.
Unfortunately, in our view, instead of dealing with the misconduct of the employee and its bearing on the employment relationship, the finding seems to morph into the examination of the fairness of her retrenchment and the procedure that was followed as the primary issue. This is unreasonable as the employee was dismissed for misconduct. Whilst we can accept that the process she was undergoing would have been stressful and should be considered, does it follow that she could say as she pleased on a public forum, even if it was patently false? In our opinion it does not. This case sends the wrong message that employees can rant about their employers, even if what they are saying is inaccurate, and this does not accord with the principle of good faith in the employment relationship.
Social media is not going anywhere and will continue to influence every sphere of life. Organisations need to start developing strategies and policies to deal with this reality and to assist in coping with the consequences thereof.