This article was written by Caleb Jones, a Candidate Attorney at Norton Rose Fulbright South Africa
Over the past decade there has been an explosion in the development of social media platforms. Facebook, Twitter, and Instagram are a few of the social media platforms that have emerged as popular sites in the public eye.
More often than not, however, these social media platforms are used to “air one’ dirty laundry” as it were. Of particular interest in the labour and employment context is the legal ramifications that can ensue from derogatory posts about employers by employees.
In the South African employment and labour law context there has been a number of unfair dismissal claims referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for employers having dismissed employees for making derogatory comments on social media sites. The general approach that has been adopted by the CCMA is that, upon evaluation of each specific factual matrix, such conduct by employees amounts to misconduct for which employers are entitled to take disciplinary action, and which may ultimately form the basis for dismissal.
The Labour Court has not been called upon as yet to comprehensively consider the issue, although it seems evident that the court may be required to do so in the near future. That being said, the Labour Court has recently been tasked with deciding whether an employee who posted certain derogatory information about the cleanliness of a hospital’s ablutions on Facebook, had made a protected disclosure in terms of the Protected Disclosures Act (PDA), thereby rendering his dismissal automatically unfair.
The employee believed that the unsanitary conditions posed a health risk to both staff and patients of the hospital. He raised these concerns with the employer, who investigated his concerns and reported back to him with their findings. Two years later the employee again raised the same concern with the employer, who again investigated the matter and subsequently implemented a comprehensive scheme to deal with the issue. In the intervening period, the employee posted certain derogatory information on Facebook. The employee was advised by his employer to cease posting such information. The employee did not. He was again advised to refrain from posting such information, but failed to heed this instruction. The employee was called to a disciplinary hearing, found guilty of gross insubordination and was dismissed.
In the Labour Court the employee argued that he had made a protected disclosure. The court found, amongst other things, that the belief was unreasonable, the information was notorious and the statutory procedure had not been followed. Despite this finding the court went further and held that:
“publishing the allegations on the internet was unlikely to solve the perceived problems: the health problem lay ultimately with the Labour Department. It was unnecessary to publish to the international community, who could do little to help. The internet is, unlike the press, not subject to editorial policy: there is no prospect of a moderator contacting the hospital for its side of the story so the public has a balanced view. The publication was therefore unfair as well as unreasonable and was not a protected disclosure.”
The court thus found that the dismissal of the employee had been fair. He violated various rules relating to the publishing of derogatory information about the employer. He had failed to obey the employer’s lawful instruction to desist in his conduct, had therefore committed misconduct and his dismissal was therefore for a fair reason.
What appears to be evident from the approach adopted by both the CCMA and the Labour Court is that the publication of derogatory information by an employee about an employer or their business is likely to constitute misconduct for which an employer is entitled to take disciplinary action. Employees would be well advised therefore to seriously consider what they post on their social media accounts.
