It is trite that everyone’s rights to privacy (section 14) and freedom of expression (section 16) are protected by the Constitution of the Republic of South Africa and include an individual’s rights to use social media and share information as well as their rights not to have the privacy of their communications infringed.
Despite this, it is clear that the above rights are not absolute, especially when considering the constitutional judgment of Gaertner & Others v Minister of Finance & others 2014 (1) BCLR 38 (CC) where it was held that:
“as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks”.
This implies that an individual’s right to privacy does not necessarily protect the statements that they make online. This therefore means that the question of whether employees can be dismissed based on their online behaviour is of broad and current interest.
Points to consider
The first, most obvious, point to consider is that it is possible (and legal) for anyone to visit another person’s account on social media sites such as Facebook, Twitter, Instagram and Snapchat. This includes situations where an employer visits an employee’s social media account. This is because, despite any privacy settings that may have been applied, any content posted online is available to the public.
Secondly, as exemplified in the matter of Dagane v SSSBC and Others  7 BLLR 669 (LC); (2018) 39 ILJ 1592 (LC), employer’s do possess the right to institute disciplinary action against employees for misconduct if they find the contents of an employee’s social media post to be offensive, racist , vulgar or disparaging.
In this matter, a police officer was held to be fairly dismissed for racist and inciteful comments that he made on the Facebook. Amongst the police officer’s comments were the following:
F@#k this white racist sh*#! We must introduce Black apartheid. Whites have no ROOM in our heart and mind.… When the Black Messiah (NM) dies, we’ll teach whites some lesson. We’ll commit a genocide on them. I hate whites.”
Another example of dismissal for misconduct on social media can be found in the matter of Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA) wherein two employees badmouthed their employer on Facebook. Despite their appeals, the CCMA found that the employees’ had been rightfully dismissed. In coming to its decision, the Commissioner confirmed that the Internet is a public platform saying:
“If employees wish their opinions to remain private, they should refrain from posting them on the Internet”
Additionally, any person or employee that re-tweets or shares a statement is as responsible for publishing it as the original author of the statement.
The question of whether an employee’s misconduct on social media is actionable by the employer is founded on the following two principles:
1.The impact of the misconduct on the working relationship between employer and employees or amongst employees – as seen in Nyembezi v NEHAWU (1997) 1 BLLR 94 (IC), the mere fact that the employee left the workplace and/or acted in their private capacity outside working hours is no defence for misconduct. The adjudicator herein found that an employee’s after hour’s consumption of alcohol during a union event was as good as consumption of alcohol during working hours.
2.The inherent basis of trust and good faith of a working relationship – it is trite that the employment relationship is based on an inherent basis of trust and good faith. It therefore follows that any action by an employee that causes the trust relationship to break down may justify dismissal of that employee.
Procedural steps to consider as employers
Employers are required to draft and implement email and internet policies that comprehensively regulate the use of internet and email at work and that specifically regulate the consequences or sanctions for non-compliance. Employees should also be requested to inform third parties that their emails may be intercepted by the employer.
Further, employers are not, as a general, rule allowed to intercept and read employee e-mails without consent or a clearly communicated policy. Doing so would amount to a contravention of the Regulation of Interception of Communications and Provision of Communication Related Information act 70 of 2002. Parties must always bear in mind that these rights are not absolute and may be limited in certain circumstances and in this age of digitalization which is constantly evolving so to is the jurisprudence regulating these forms of communication.
When drafting these policies, keep in mind that policies should be written in such a way that it not only regulates the conduct of the employees, but also that of the employer, therefore protecting the latter from contravening the Act.
In accordance with the Labour Relations Act and the related Code of Good Practice, employers will need to establish the following before dismissing employees for misconduct on social media:
a) Whether or not the employee contravened a rule or standard regulating conduct in relevance to the workplace (for example, a social media policy); and
b) If a rule or standard was contravened, whether or not—
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
Provided by Allardyce & Partners Attorneys
By Zinhle Mavuso (Paralegal)
**Kindly note that this cannot be considered to be legal advice and should you require assistance kindly contact Allardyce & Partners on 011-234 2125 or firstname.lastname@example.org