Cape Town - While dismissals relating to social media misconduct are generally being confirmed, employers cannot use employees’ online conduct to execute a pre-meditated house cleaning, Rosalind Davey, a partner at leading corporate law firm Bowman Gilfillan, warned on Monday.
She was commenting on the recent spate of dismissal decisions relating to social media by dispute resolution body, the Commission for Conciliation, Mediation and Arbitration (CCMA).
Davey said normal rules of fairness and equity apply equally to virtual labour relations, but warned employees to think twice before making derogatory statements about their employers on social media platforms like Facebook.
She said that while there has not yet been a superior court test case, the recent CCMA rulings are instructive.
“The extent to which an individual’s privacy is protected when misusing social media platforms would be more clearly established by a High Court test case.
“Similarly we would love to establish the extent to which John Doe’s employer is entitled to intercept his online communications, and most of all, which one of these scenarios trumps the other.
“Until then, it is interesting that CCMA commissioners have been inclined to confirm the dismissal of employees who have made derogatory comments online about their employers on the basis that, in these circumstances, an employee’s right to privacy may be limited or even forfeited.”
Bowman Gilfillan’s Lenja Dahms-Jansen said the CCMA is generally the first stop for employees to challenge their employers. Although the CCMA’s decisions are not legally binding, challenged it can have material and often costly consequences.
Dahms-Jansen listed two examples where the CCMA confirmed the “Facebook” dismissals:
In Sedick & another v Krisray (Pty) Ltd certain employees made derogatory comments on Facebook about the management of the employer. When the marketing manager of the employer set up her own account on Facebook she found that she could access all the posts on the employees' profiles and was able to read their comments.
The employees were subsequently dismissed. In challenging the fairness of their dismissals, they alleged that the employer had suffered no damage because their posts had not referred to anyone by name. The employees also alleged that by accessing their profiles, the employer had infringed on their rights to privacy.
Said Dahms-Jansen: “The commissioner considered the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA), which regulates the interception of communications and decided that the employer was entitled to access the discussions as the employees had ‘open’ Facebook profiles.
“The commissioner found that they had failed to use their privacy options and had thus abandoned any claim to privacy and to the protections of RICA. The commissioner confirmed that the comments brought the employer’s reputation into disrepute and confirmed the dismissals.”
In Media Workers Association of SA on behalf of Mvemve and Kathorus Community Radio, an employee posted remarks on Facebook criticising the organisation's board, and its station manager, who he claimed was a criminal. The Commissioner based his decision confirming the dismissal on the fact that the employee had tarnished the employer’s image by posting unfounded allegations on Facebook without having addressed them internally first.
In considering the value of these non-binding decisions, Davey said it is clear that the commissioners are taking the issue of social media misconduct seriously and that they are not prioritising issues of special privilege, privacy and anonymity of employees online.
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