Social media has changed the way in which we communicate both personally and professionally. Facebook, Twitter, Instagram, WhatsApp, Telegram, YouTube etc., are a few of the social media platforms which are used by many for the purpose of sharing personal views.
Many employees are of the view that what they share on social media, especially on their personal devices, using their own data and in their own time, cannot have an impact on their employment relationship. An important question then is whether an employer can discipline employees when they post inappropriate comments or posts regarding their employer or that may negatively impact their employer on their social media platforms.
The general rule is that an employer has no competency to discipline an employee for conduct that is not work-related, which occurs after working hours and away from the workplace. However, where there is a general rule, most times, the law provides an exception to that rule. This exception had to be determined by the Labour Court in the recent decision of Edcon Limited v Cantamessa and Others(JR30/17) [2019] ZALCJHB 273; (2020) 41 ILJ 195 (LC); [2020] 2 BLLR 186 (LC) (11 October 2019) (“Edcon”).
In the Edcon matter, an employee had been dismissed for social media misconduct. In December 2015, then-President Jacob Zuma appointed Mr Des van Rooyen as Finance Minister, in the place of Mr Nhlanhla Nene. Many South Africans were not happy with President Zuma’s cabinet reshuffle. On 20 December 2015, while on annual leave, the employee posted the following message on her Facebook account: “Watching Carte Blanch and listening to these f****** stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president… President my f****** ass!! #zumamustfall This makes me crazy ass mad.”
It was common cause throughout the dismissal dispute that the employee had posted the comment on her Facebook page, while she was on annual leave, using her own computer and data. The comment she made had nothing to do with her duties as an employee of Edcon. The fact that her Facebook page indicated that she was employed by Edcon was also common cause.
The Labour Court held that the general rule is that an employer has no jurisdiction or competency to discipline an employee for conduct that is not work-related and which occurs after working hours and away from the workplace. However, in Hoechst (Pty) Ltd v Chemical Workers Industrial Union and Another, the Labour Court held that the fact that the misconduct occurred away from the workplace and outside working hours does not necessarily preclude the employer from disciplining its employee if there is a link between the employee’s conduct and the employer’s business. The test for determining whether there was such a link was described as follows: “[a]t the end of the enquiry what would have to be determined is if the employee’s misconduct had the effect of destroying or seriously damaging the relationship of employer and employee between the parties.”
The Labour Court held that Edcon could exercise discipline over the employee, provided it established the necessary connection between the misconduct and its business. It noted that the comments made by the employee did not relate to the employer-employee relationship and that the only source for the connection was that on her Facebook page, where she indicated that she worked for Edcon. The Labour Court, therefore, found that there was a connection between the employee’s conduct and the relationship she had with her employer and held the following:
“In principle, therefore, Edcon could exercise discipline over Ms Cantamessa provided it established the necessary connection between the misconduct, if any, and its business. The comments made by Ms Cantamessa did not in and of themselves relate to the employer-employee relationship. The only source for the connection lies in that her Facebook page indicated that she worked for Edcon. However, Edcon is a merchandiser of its various products in a competitive industry. Ms Cantamessa, as a Specialist Buyer, played a pivotal role in the acquisition of such products, including ladies trending styles and fashion for Edcon. The success of its business also depends largely on how it markets itself to the public. Therefore, having a good name is an essential asset or quality of Edcon to the public. In as much as Buyers of Edcon can and often remain anonymous to the public, once their identities are exposed to the public, it must only be in a positive and not negative environment or circumstance, otherwise, such disclosure imposes a risk that the name of Edcon may be brought into disrepute. Therein lay the connection between the conduct of Ms Cantamessa with the relationship she had with her employer. She had to avoid being a controversial employee in the public eyes where she could be associated with Edcon.”
The Labour Court concluded that the employee had made a highly offensive remark in respect of which Edcon was entitled to take disciplinary measures, for fear that its name be put into disrepute for tolerating racism and discriminatory conduct. The Labour Court concluded and agreed that the employee’s conduct exposed Edcon to a risk of reputational damage and that her dismissal was substantively fair.
It is clear from this case that an employee may be disciplined for conduct outside of working hours, and that an employer may discipline an employee for conduct that is not stipulated in the disciplinary code. However, there must be a link between the employee’s conduct and the employer’s business that destroys the relationship between the two parties.
It may also serve as a warning to employees to watch what they say and post on social media because the defence that comments made or posted outside of working hours will not necessarily stand.
Article by: Jodi-Leigh Erasmus
Dispute Resolution Official – Port Elizabeth