This article was written by Amelia Berman, an associate at Norton Rose Fulbright South Africa

It is very common in this day and age for employers to have regard to prospective employees’ Facebook pages and Twitter accounts before employing them or for employers to inspect these social media platforms to verify the veracity of sick leave days taken by employees.  In addition, more and more employees are facing disciplinary action for excessive time spent on social media sites during working hours or for controversial opinions expressed on such sites.

Investigations conducted by employers into prospective employees’ lives by means of social media or bringing employees to task for making defamatory comments about the employer or publishing confidential information are often met with defences including the right to privacy or freedom of expression.

The Commission for Conciliation, Mediation and Arbitration (CCMA) has dealt with social media misconduct in a number of cases including, Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA) and Fredericks v Jo Barkett Fashions (2011) JOL 27923 (CCMA).  In the Sedick case, two employees were dismissed for bringing their employer’s name into disrepute as a result of derogatory Facebook comments having been posted by them about the owner of the business and members of his family.  The employees challenged the fairness of the dismissals at the CCMA and claimed that their comments had not brought the name of the employer into disrepute as neither the company nor the specific individuals had been named.  Furthermore, the employees claimed that their rights to privacy had been breached.

The CCMA found that the employees were fairly dismissed as their privacy had not been infringed when their employers accessed their Facebook posts as 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) as the employees had open Facebook profiles.

Although the identity of the employer and the individuals about whom the derogatory comments were made was not publicised, the CCMA found that it was highly likely that the identity of the employer would be known and although actual damage to the reputation of the employer was not proven the potential for damage was sufficient to justify dismissal.

In Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA) a radio station employee posted critical remarks on Facebook about the organisation’s board and claimed its station manager was a criminal.  Instead of dismissing the employee, the employer issued him with a final written warning provided that he comply with two conditions being, that he issue certain apologies and post an apology on Facebook.  The employee was later dismissed for not having complied with the conditions.  The CCMA found that the employee was fairly dismissed as he had posted unfounded allegations on Facebook, and after being issued with a final written warning failed to comply with the condition to issue certain apologies.  The commissioner was satisfied that the employee had tarnished the image of the radio station by posting unfounded allegations on Facebook without first addressing them internally.

In the case of Smith v Partners in Sexual Health (2011) 32 ILJ 1470 (CCMA), a manager inadvertently gained accessed an employee’s private Gmail e-mail account (thinking that she was accessing the employer’s Gmail account which was administered by the employee) while she was on leave and found e-mails between her and former employees, as well as persons outside the organisation, which made reference to internal confidential matters.  After printing some of the e-mails the manager logged out of the employee’s private Gmail account and later tried to re-access the Gmail account.  When the manager could not find the incriminating emails she realised that she had previously been accessing the employee’s private Gmail account.  As a result the employee was charged with, amongst other things, bringing the employer’s name into disrepute.  In her defence at a disciplinary inquiry, the employee contended that the e-mails were accessed in violation of her right to privacy and in contravention of RICA.  The CCMA ultimately found that the intentional access on the second occasion contravened RICA and the evidence obtained through this access was inadmissible on the basis of an infringement of the constitutional right to privacy.  The CCMA held that the employee’s dismissal was procedurally and substantively unfair.

Where the misconduct landscape is evolving owing to the social media era, employers are counselled to formulate detailed social media policies limiting the use of (or prohibiting the use of) social media during office hours as well as seeking the consent of employees to intercept their communication.  Employees, on the other hand, should be cautioned by Erin Bury (the community manager at Sprouter) who says “don’t say anything online that you wouldn’t want plastered on a billboard with your face on it”.

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