Social networks, such as Facebook, serve as a useful vehicle for sharing one’s personal views. It can also have unexpected and unfortunate ramifications. One example is when an employee makes use of a social network to air his views about his or her employer.
It would seem that, for some reason or other, employees lose their inhibitions when there is a screen between them and the world out there. There have been several cases where employees have used a social network, such as Facebook and Twitter, to say nasty things about their employers. It is one thing to speak your heart out about your boss to a friend over a drink. As soon as you post it on a social network, though, two important dimensions are added: Firstly, your thoughts or words are recorded in text and cannot be retracted; secondly, you lose control over its distribution.
Who can blame an employer for wanting to take disciplinary action if an employee’s caustic comments about the employer are given publicity in this way? Several questions arise, though:
- What if it did not happen at work or during working hours?
- What about the employee’s right to privacy? Can the employer rely on evidence that was meant to be private?
- Does the employee’s position within the company make a difference?
- Does the remark necessarily destroy the employment relationship?
These considerations were addressed very lucidly in the CCMA-case of Sedick & another vs Krisray (Pty) Ltd. Two senior employees were dismissed for having exchanges via Facebook regarding the employer and members of management. They exchanged several snide remarks about the founder of the business and younger family members that were brought in to help manage the business. These remarks included “Trust me no one can put up with so much shit when the fing kids join the company!”; “From so-called ‘professionalism 2 dumb brats runnin a mickey mouse business”; “... today was hectic with Frankentein”; “What an idiot”; “a very ugly man with a dark soul”.
In this case the dismissal was not challenged on the basis that the exchanges had happened outside of working hours. However, it has become a firmly established principle that an employer may take action against employees for conduct outside working hours if such conduct has an adverse impact on the employment relationship.
As far as the issue of privacy is concerned, the commissioner noted that the internet is, for most part, public domain. This also applies to Facebook, to the extent that the employees had not restricted access to the relevant pages. As a consequence of their failure to make use of the privacy options, they had abandoned their right to privacy and the protections of the Regulation of Interception of Communications and Provision of Communication-related Information Act of 2002 (“The Interception Act”).
Although no names were mentioned, the employees were intentionally communicating with subordinates within the company, as well as with ex-employees and other persons. According to the commissioner 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. Whilst some of the postings were quite innocuous and not, in the commissioner’s opinion, all that damaging to the employment relationship, the greater number were extremely serious and, if not constituting insubordination, certainly constituted gross insolence.
After taking into account what had been written, where the comments had been posted, to whom they had been directed and by whom they had been said, the commissioner found that dismissal was a fair sanction. The arbitration award was concluded with the following terse observation: “If employees wish their opinions to remain private, they should refrain from posting them on the internet”.
Jan Truter of www.labourwise.co.za
www.labourwise.co.za is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via the website or firstname.lastname@example.org.