The world of Social Media has infiltrated a plethora of sectors amongst the human race over the years and has now crept into the workplace.
Social Media may be defined as the distribution of information through the use of:
- Any technologically advanced devises such as laptops and cell phones,
- Applications ( APPS), and
- Web based tools (Programs that are accessible via a network other than the programs that are held within the memory of a device) an example of such would be a storage drive that is accessible via the internet and not on a devices internal storage/memory.
The word distribution plays a very important role in this topic as it proves evidential of the widespread, scattering, circulating and far reaching nature of Social Media. The dangers of such distribution when linked with the workplace environment can have long lasting detrimental repercussions not only for the employee but also for the employer.
The duties an employee has toward their employers good name is of paramount importance towards the employment relationship.
What happens when I post directly about my job on social media?
The above mentioned question may be answered through taking a look at the case of National Union of Metalworkers of South Africa obo Zulu v GUD Holdings (Pty) Ltd (2015) 24 DRC.
An employee posted the following unwarranted, destructive and threatening posts on their Facebook page:
“In this company, employees are taken for granted. I wish I could bomb and burn the company including its management.”
The employee subsequently underwent a disciplinary enquiry on the grounds of gross negligence due to his behaviour on Facebook. The employee defended themselves stating that the post should not be taken to heart as they were not meant in the literal sense because they did not indicate something that he would do in reality.
The employee further submitted that he anticipated that the post would only be seen by his friends, he averred that the post came out the blue without thinking about it and that he did not anticipate the post being perceived as being threatening.
The employer countered the employee’s submission by stating that they were faced with a tense and threatening case after eleven (11) striking employees were dismissed, the employees Facebook post was taken in a highly serious manner.
The Commissioner residing over the matter concluded that the employees’ averment of not consciously intending to post threatening posts as being implausible.
The Commissioner further put forth that the more plausible interpretation was that the employee was disgruntled and that had he had the ability to resolve the matter he would do so through the means of bombing the company.
The employee’s dismissal was upheld. Therefore in the abovementioned case it is evidential that it is legally looked down upon for an employee to post commentary that is vexatious and harmful towards the employer.
The fact that an employee did not intend for their post to appear as harmful is not acceptable as the medium of social media does not always spell out the intended meaning behind a users’ post.
Therefore for an employer as well as social media users, who do not know the intended meaning of a post, the post may be depicted in a manner that is negative towards the employers’ goodwill.
What happens when I don’t post directly about my job on social media?
The case of Dewoonarian v Prestige Car Sales (Pty) LTD t/a Hyundai Ladysmith (2014) [MIBC] brings light to the above question in that an employee had posted the following on their Facebook page:
“Working for and with Indians is pits, they treat their own as dirt.”
This post may swing two ways:
1) For those who do not know where the employee is employed their comments may be taken as being derogatory towards a specific race group in general, whereas
2) Persons who are knowledgeable of where the employee is employed may understand the post as one coming from an employee who is disgruntled with where they are employed.
Neither of the above realisations are positive towards the employer as they are assumptions derived from the mind of a reader who is removed from the situation. The danger attached to making assumptions may prove negative for the employer.
The employer saw the Facebook post as being directed at the employer as a large number of the employees are Indian as well as the company’s directors. The company charged the employee with bringing the company’s name into disrepute in that the employee used social media, namely Facebook, to portray their derogatory views.
The employee argued that her section 16 constitutional right to freedom of expression granted her protection regarding the post made on her Facebook page. The Arbitrator pointed out to the employee that her right to freedom of expression was not an outright right that automatically came into play when called upon.
The Arbitrator stated that where one makes unwarranted and or negligent commentary on social media, such postings hold the potential of harming the employers business.
Therefore in conclusion, people within the work place be it employees and or employers must be mindful of the effect social media can have on the workplace.
A quote from the case of Tsichlas v Touch Line Media (Pty) Ltd 2004 (2) SA 112 (W) links the distributive, far reaching, nature of the world of social media. The court stated that:
“In effect, whenever anybody, anywhere in the world accesses this website and reads and understands the words complained of, there will have been publication to that user at the particular place where the user has accessed the website.
Bearing in mind that we are dealing with the internet and electronic communications, that national or geographic boundaries would not apply and distances are irrelevant, the implications of this conclusion are enormous.”
An employee has the duty of good faith toward their employer and such forms an integral part of the employment relationship. The employment relationship could be harmed through posts or comments made by an employee on a social media platform.
Therefore, it is evidential that the importance of correct conduct, where the workplace and social media are involved, is highly important. Where trust within the employment relationship is subsequently broken by the employee disciplinary hearings as well as a dismissal may ensue.
The abovementioned cases indicate that it is legally looked down upon for an employee to post commentary that is vexatious and harmful towards or in relation to their employer.
The fact that an employee did not intend for their post to appear as harmful is not acceptable as the medium of social media does not always spell out the intended meaning behind a users’ post.
Employment related posts that are shared on social media platforms may result in the warranted dismissal of such employee.
Insinuations and inferences that readers may draw from posts have been highlighted through the Courts as well as in the CCMA’s rulings, it has been made blatantly clear that the wide reach of social media goes hand in hand with the dangers of negligent, harmful and distasteful postings on social media platforms.
Employees are therefore encouraged to be mindful of what they post, share and comment on on social media as it may have immense negative results regarding their employment.
Should you wish to obtain further information regarding this topic please contact: Goldberg & de Villiers at Pembridge House, 13 Bird Street, Central, Port Elizabeth. E-Mail: info@goldlaw.co.za or Call: 041 501 9800.