The Commission for Conciliation, Mediation and Arbitration (CCMA) has made two key decisions, ruling that employers can fairly dismiss employees for intentionally posting offensive statements on social networks, such as Facebook.
In each of the cases, the CCMA said the employees were fairly dismissed, as their privacy had not been infringed when their employers accessed their Facebook posts.
According to David Luyt, of Michalsons Attorneys, the employees had published the statements in the public domain by not restricting their Facebook privacy settings. In that case, their employers were entitled to intercept the posts in terms of South African monitoring law, he explains.
In the first decision, the employer was able to access and see everything on the employees' Facebook walls, without being given access as a friend. One employee referred to the employer and her brother in a post as, “2 dumb brats runnin a mickey mouse business” (sic) and the other employee referred to the director of the company as, “a very ugly man with a dark soul”.
In the second ruling, the company's GM found some offensive statements posted by an employee, including name-calling.
The CCMA found that the posts did serious damage to the companies' reputations in the public domain, because the employees were intentionally publishing offensive comments insolent enough to justify dismissal.
“If employees wish their opinions to remain private, they should refrain from posting them on the Internet,” the arbitrator said.
Paul Jacobson, director of web.tech.law and a Web and digital media lawyer, says it is permissible to dismiss employees who post offensive material about their employers. “Employees owe their employers certain duties and publishing such material breaches those duties employees owe to their employers. These duties predate the social Web, so this isn't new.”
However, he explains that employers do not have carte blanche to infringe employees' privacy.
“One issue, which I don't think the CCMA dealt with sufficiently and which could become important, is that privacy is also contextual and, while these particular employees don't seem to have set their privacy settings effectively, we may encounter cases where accessing a post on Facebook other than through an approved connection may well infringe an employee's privacy.”
Jacobson urges companies to adopt clear and reasonable policies clarifying which forms of conduct are acceptable on the social Web and what employees' responsibilities towards their employers and other stakeholders are.
“The one fundamental reason for this is to establish a clear and reasonable standard against which to measure employees' conduct.”
On the other hand, Luyt says monitoring is generally not allowed under the Regulation of Interception of Communication and Provision of Communication-Related Information Act (RICA), unless the person who intercepts the communication is party to it; one or more of the parties have consented to the communication being monitored in writing; or where the employer goes through important procedural steps prescribed in RICA.
Share