With the rapid growth of the use of social media, it may be necessary to regulate or provide guidelines to such use in the absence of legislation regulating the same, especially in an era where more and more employees are dismissed for “social media misconduct”.
Social media has become one of the most prominent forms of communication and messages conveyed via social media may have numerous ramifications which can lead to disciplinary action, and ultimately dismissal. From a business perspective, the employment relationship can be affected by, amongst others, risks to reputation, defamation, vicarious liability, and the disclosure of confidential information. It is, therefore, important for businesses to implement firm social media policies to mitigate the inherent risks of social media conduct.
The following cases have demonstrated how the CCMA deals with social media misconduct:
In Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA) the Applicants were charged with “bringing the company name, director, management and staff into serious disrepute in the public domain”, namely Facebook. One of the options on Facebook is to restrict access to the users’ posts to their friends only (those socially connected to the user). In the present case, the Applicant did not place any access restrictions on their profile and anyone who accessed that person’s wall could freely read all their posts. The Respondent’s marketing manager had sent a friend request to the applicants and perused their posts as no restrictions were in place, as the Respondent’s marketing manager did not need to be her friend to see her posts. Her attention was drawn to a somewhat derogatory post regarding the company, and clear references were made to 2 employees and the owner of the company. The Applicant also made several references to wanting to find a new job. These posts were accessible to everyone, including customers and suppliers. The Commissioner submitted that apart from employees using social media during working hours, which is a problem on its own, there is an additional problem on how the ways these sites are used and what is put on them. The Commissioner had to consider whether the Applicants’ right to privacy had been breached due to the Respondent accessing and printing the posts. The Commissioner found that their dismissal was fair and referred to the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002, particularly the definition on “interception”. This case emphasised the limitations of this statute when posting on the internet.
In Fredericks v Jo Barkett Fashions  JOL 27923 (CCMA), the social media platform Facebook was also in use. The Applicant had made several remarks which were horrific and disturbing, and due to the similarity between the present case and the above-mentioned one, the Commissioner in Fredericks made reference to the above-mentioned and found that the dismissal was substantively fair.
In Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA) the employee had posted remarks on Facebook, alleging that the station manager was a criminal. The allegations were unfounded, and the employee had failed to address this issue internally first.
However, in Smith v Partners in Sexual Health (non-profit) (2011) 32 ILJ 1470 (CCMA), the media was obtained differently than the above case. The CEO accessed the employees’ private Gmail email account accidentally, during the employees leave, and found emails between the employee and former employees as well as persons outside the organisations. Some of the content of these emails contained internal private and confidential matters. After reading these emails, the CEO logged out of the Gmail account and then intentionally logged back in. The employee was charged with several offences, such as bringing the employer’s name into disrepute. The employee’s defence at the disciplinary hearing was that the access to her email was a violation of her right to privacy and in contravention of RICA. The CCMA, in this case, found that the intentional access on the second occasion was a contravention of RICA and the evidence was thus inadmissible based on the infringement and held that the dismissal was therefore procedurally and substantively unfair.
It is noticeable that the CCMA is taking issues of social misconduct very seriously with employees relying too heavily on their right to privacy. It is, however, noteworthy that employers should not use social media to go on a “witch hunt” to build up a case against an employee or employees.
From the above-mentioned case law and its interpretation, it is noted that an employee who posts derogatory or reputation-damaging posts on social media may face disciplinary action, which could even possibly lead to a dismissal. Apart from the employee facing disciplinary action, social media posts of this nature can easily lead to the company facing vicarious liability legal action for discrimination, harassment or even defamation, should the social media misconduct occur in the scope of their employment.
To avoid acts of social media misconduct, the Contract of Employment or company policy should set out guidelines for the use of social media, by guiding employees in what is acceptable and unacceptable to post whilst in the employ of the company. This can be a delicate situation, integrating this guideline as you need to be wary of not impeding on the freedom of expression of that employee.