What you say on social media can get you fired!

Dinsdag, November 6th, 2012

What you say on social media can get you fired!

Johanette Rheeder

Facebook, Twitter and other social network sites are part of many people’s lives, some more than others. As a consequence, employees are active and post comments, read comments or chat on a continuous basis on these sites, also during work hours. Some studies have shown that employees can spend up to 75% of their work time on private activities on the internet and social media. Apart from idling your time away, what you say on social media can also constitute misconduct. In terms of the South African labour law, an employee owes his employer a common law duty of good faith. This entails inter alia the existence of a trust relationship between employer and employee, that the employee shows respect towards her superiors and that the employee does not conduct himself in such a way that he damages the reputation of the employer. The comments employees make against their managers, co workers and employer, can damage the reputation of the employer, show disrespect to managers or create conflict or disharmony in the work place.

In Sedick & another v Krisray (Pty) Ltd (2011) 20 CCMA 8.7.1 and [2011] 8 BALR 879 (CCMA), the employees, respectively the operations manager and bookkeeper, were dismissed for “bringing the employer’s name into disrepute in the public domain”. The charge arose from messages “posted” on the operations manager’s “Facebook wall” on the internet, in which derogatory comments were made by the three employees about the owner and members of his family employed by the respondent. Neither employees expressly used the name of the company or of any persons, but the references were clear. The employer argued that the seriousness of these comments had to be considered in the context of (a) his position in the company; (b) his position as representative of the company on a day-to-day basis to both customers and suppliers; (c) the comments being made in a forum which was fully accessible to anyone, including those same customers and suppliers, and (d) the comments being made and responded to by both former and current employees, the latter being considerably junior to the operations manager, who was also in a position of trust and, as bookkeeper, dealt with company matters as well as  the owner’s private investments. The posting of comments of a personal nature about himself as well as his children caused the owner considerable affront.

 The dismissed employees claimed that the comments had not brought the employer’s name into disrepute because neither the company nor the persons referred to had been specifically named, and that their privacy had been breached by the employee who had accessed their pages.

The commissioner mentioned that the ever-increasing access to and use of the internet has been, and continues to be, both a blessing and a curse to business worldwide. The advent of social networking sites such as Facebook particularly so. Apart from the problem of employees accessing these sites during working hours, using employers’ resources and thereby causing considerable losses to industry, there is an additional problem of the use to which these sites are put. This dispute is a case in point. The dispute arose not from the employees’s use of the site during working hours, (although from the evidence it is clear that they were at least some of the time doing just that) but from the comments they made and with whom these were shared on that site.

Did the employer breach the employee’s privacy, as was argued.

The Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002, (RICA) as amended, may apply in this instance. In RICA, “interception” is defined as the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication, and includes the monitoring of any such communication by means of a monitoring device; or viewing, examination or inspection of the contents of any indirect communication; and diversion of any indirect communication from its intended destination to any other destination. Section 4(1) of the same Act provides that any person….may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence.

The question of breach of privacy and public domain impacts on whether or not the aforementioned provisions apply in this instance. The internet, and social sites such as facebook, is generally accepted to be, for the most part, public domain. Access is unrestricted by the sites themselves and members may exercise options to restrict access to their personal pages and the content of those pages. Of importance is that in this instance, the employees did not restrict access and made the comments in the public domain. This being the case, the employees’ pages remained wholly in the public domain and the employer was free to access them.

The admissibility of the employer’s evidence about what was contained on the facebook page was not illegal, nor was it a breach of privacy. The restriction of RICA also does not apply to this situation. In the absence of access to the pages being restricted, their pages remained wholly in the public domain. By extension, any person using the internet qualified as a party to the communications, including the owner, and as a consequence, she was entitled to intercept, that is, to read, download and print, these communications in whole or in part. The employee’s postings were, to all intents and purposes, available to the public in the same way that blogs and public comments on news media sites, or letters published in newspapers are available.

The commissioner found that as a consequence of their failure to make use of the privacy options, the employees abandoned their right to privacy and the protections of RICA.

The commissioner then looked at the question as to whether the comments posted serve to bring “the company name, Director, management and staff into serious disrepute in the public domain”? The employer argued that they did. The commissioner agreed. The employees were intentionally communicating with subordinates within the company as well as with ex-employees and other persons. Despite their protestations to the contrary, it was highly likely that, in addition to the current and ex-employees, some of these other people were aware of the identity of the employer. This meant that two of the senior employees in the organisation were publicly making derogatory and demeaning remarks about the director and management to persons who, on the balance of probability, were fully aware about whom these comments were being made.

The employer went on to argue that the potential for damage to the company and its management’s reputation amongst its customers, clients and competitors was considerable, given the open access to the comments. The comments encouraged and condoned the lack of respect for management. Some of the postings were damaging to the employment relationship constitute insubordination and gross insolence.

Taking into account all the circumstances – what was written; where the comments were posted; to whom they were directed, to whom they were available and last but by no means least, by whom they were said – the commissioner found that the comments served to bring the management into disrepute with persons both within and outside the employment and that the potential for damage to that reputation amongst customers, suppliers and competitors was real.

In Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA) the CCMA commissioner confirmed the rule test in the absence of a policy on the matter. The commissioner found the employee knew the rule and that she used the wrong platform to air her complaints.

These cases deal with the situation where employees air their views and complaints on sites where the general public have access to. What will be the situation where the comments are made on a restricted site? Obviously, the employer cannot obtain this information in breach of the employee’s right to privacy. Employers who want to protect their business will have to address the issue via a proper policy and employees should be made aware of the fact that they consent to their private emails, postings or blogs being intercepted are implied or agreed to in terms of this policy. If the employer becomes aware of the information via other admissible evidence, then the employee will probably have a lot to explain, as the comments can be indicative of any of the above aggrieved situations!

                                    

Johanette Rheeder Inc

johanette@jrattorneys.co.za

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