Social media is an integrate part of most people’s lives and most employees use social media on a daily basis within the working hours and even more so outside of working hours. This is where the line of what constitutes conduct for which an employee may be disciplined, has become blurred.

In the past few years, we have seen various examples of employees being disciplined for inappropriate comments made on their personal social media platforms during and outside of their working hours. Some of the employers have even gone as far as dismissing the said employees. It does not matter what particular social media forum has been used, the consequences of their actions have been more far-reaching than they ever could have imagined.

The South African public often think that their right to freedom of expression is completely protected in terms of the Constitution; however, not everyone is as aware of the limitation to that right as they should be. The right to freedom of expression 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, South Africans do not have carte blanche to say whatever they like on public forums.

Social media in the workplace
The policing of an individual’s use of social media has become particularly relevant in the employment relationship. One of the cornerstones of an employment relationship is the duty of good faith that an employee has towards his or her employer. If an employee behaves in a manner which violates that duty, discipline is likely to follow. This is a widely understood rule.

Thus, an employee’s comments on a social media platform about their employer, their client or customer or even their views about any subject in general could easily violate this duty of good faith.

While many employers have social media policies in place, the extent to which these policies can be relied upon to justify disciplinary action taken against an employee will depend largely on, among other things, whether the employee knew or ought reasonably to have known about the policy.

There is no legislation explicitly dealing with social media in South Africa and employers therefore look to other statutes and the common law to determine social media law. Dismissal may be deemed to be appropriate when a social media post contains derogatory, derisive or disparaging remarks about the employer and brings or could bring the employer’s name into disrepute; and if the employee directs derogatory and offensive comments at his or her employer or co-employees and these comments negatively impact on the working environment and render the work relationship intolerable.

It is therefore very important for employers to ensure that they have a social media policy in place to establish the principles for employees using social media for official and private purposes when the employee‘s affiliation to the employer is identified, known, or presumed. Such a policy must clearly define “social media” as well as guidelines on how to use these public platforms and employees must be trained on same.

Social media usage off-duty
What an employee does after work generally falls outside the scope of the employment relationship and accordingly, the employer has no right to discipline an employee for this conduct. However, if it can be shown that there is a link between this conduct and the employer’s business, an employer may be entitled to discipline the employee.

For instance, the scenario where online posts are not aimed at or derisive of the company or employees of the company but are generally offensive remarks that amount to hate speech. Such conduct amounts to off-duty misconduct.

The inevitable question is whether an unsavoury social media post constitutes a fair reason to dismiss an employee. To answer this, it must be determined if the conduct of the employee on social media outside of the working hours caused damage or had the potential to cause damage to the employer’s good name and reputation and if the conduct of the employee impacted negatively or had the potential to impact negatively on the workplace. Where this is found to be the case, an employer may be entitled to take disciplinary action against the offending employee.

Case law
In both Sedick & another / Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA) and Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA), the employees were dismissed as a result of derogatory Facebook status updates. They challenged the fairness of the dismissals at the CCMA and in both cases the CCMA found that the employees were fairly dismissed.

The commissioner noted that the internet is a public domain and Facebook users have the option to restrict access to their profiles as well as the information that they publish. In this case, the dismissed employees did not block access to their profiles and as such any person could have accessed the information that they have published.

Furthermore, the commissioner found that former or current employees of the company, that accessed the profiles of the two employees, would have had no difficulty in identifying the person they referred to in their communications.

It is thus clear that a dismissal under such circumstances could be fair, provided that the employer follows the correct procedures and that the evidence used against the employee has not been illegally obtained in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002.

However, the Gauteng High Court has recently held that the cancellation of a contract by M-Net in the face of public outcry against social media posts by Gareth Cliff, was unlawful1. Although the facts of this case fell outside the realm of employment law, it has significant implications for the workplace and employers ought to be mindful that while dismissing an employee for conduct on social media may be lawful and fair, it is not always the appropriate response.

In the social media age we live in, it is easy to forget that a post may have consequences that may affect your job, your employment relationship and your employer’s reputation. It is important for employees to bear in mind that they do not have carte blanche to say anything they choose to on social media as freedom of speech is limited and it might lead to a dismissal even when technically posted offduty.

On the other side of the coin, employers should remember that in order for a dismissal for conduct on social media to be fair, there has to be misconduct by the employee which renders the continued employment intolerable and the employer must have followed a fair procedure.

1Cliff v Electronic Media Network (Pty) Ltd (1368/2016) [2016] ZAGPJHC 2; [2016] 2 All SA 102 (GJ) (29 January 2016)

Article by Arinda Truter – Schoemanlaw Inc.