Social media changes the disciplinary landscape

Amelia Berman is employment lawyer and associate at Norton Rose Fulbright South Africa

Amelia Berman is employment lawyer and associate at Norton Rose Fulbright South Africa

Several cases of high profile people fired or suspended for making ill-advised remarks on social media platforms have made news headlines this year.

Nationally, Hawks spokesman McIntosh Polela was fired for a Twitter comment, and FHM writers Maxim Barashenkov and Montle Moorosi lost their jobs over corrective rape comments on facebook.

Internationally, there have been numerous cases of people being fired for bad mouthing their bosses, colleagues or customers, complaining about their working conditions, or for posting evidence of their infraction of company codes of conduct.

Amelia Berman, employment lawyer and associate at Norton Rose Fulbright South Africa, says: “Misconduct committed by employees through the use of social media will not affect the categorisation of offences.

“What will be affected is an employer’s ability to monitor this type of misconduct.

"For example, an employee may be disciplined for making inappropriate or defamatory comments in a public domain, or even disclosing the confidential information of an employer.

“These types of offences are not particular to the use of social media, but may have more far-reaching consequences in that the reach of the inappropriate or defamatory comments will be wider through social media.”

Nerushka Deosaran, IT law specialist and associate at Norton Rose Fulbright South Africa, says: “People tend to have a misconception that if they post something privately, it cannot be seen. But anything you post online can make its way into the public domain and people need to be mindful of this.

  “Anything sent digitally could become public, whether you intended it to or not. A nice rule of thumb would be if you would be comfortable putting it on a billboard or the seven o’clock news, it should be safe to say it online.”

Another misconception people have, says Deosaran, is that people believe that they are anonymous online.

“There are ways and means of finding the identities of people who have posted something online. Take for example the University of Cape Town Exposed blog, where three students tracked down the identity of the person behind an offensive anonymous blog.

“Anyone wanting to lay charges against someone over anonymous online posts could also obtain a court order to get the social media platform to release the IP address of the originator and the Internet Service Provider to release the identity of the person using that IP address.

“With the new Protection from Harassment Act, the police and courts have the power to conduct these investigations on your behalf.”

On the question of what constitutes a social media post that could be seen to reflect badly on an employer, Berman says: “There is unfortunately no definitive answer to this. The test here is really the extent to which the comment has the effect of destroying the trust relationship between the parties.

“For example, an employee complaining about his or her working conditions in isolation may not be seen as sinister, unless that employee’s comments may have an impact of portraying the employer in a bad light.

“If an employer has a clear social media policy making it clear that it will be an offence if an employee brings the company’s name into disrepute through the use of social media, then employees may think twice before making any comments, harmless or otherwise, about their employment.”

Berman says an employer might take disciplinary action against any misconduct committed using social media by invoking the provisions of the Labour Relations Act, 1995, and the Code of Good Practice: Dismissal attached to the Labour Relations Act.

The Act stipulates that any termination of employment must be both procedurally and substantively fair, and must follow due process in terms of the Code.

Because the Code prescribes the notion of progressive discipline, if an employer wants to terminate employment for misconduct committed through social media, the offence has to be serious enough to warrant dismissal owing to the breakdown of trust between the parties.

However, to prove that a dismissal for misconduct is fair, an employer must prove: 1) there is a rule or standard governing the conduct; 2) the employee was aware or reasonably aware of the rule or standard; 3) the employee breached the rule or standard and 4) that dismissal is the appropriate sanction.

Berman says: “Therefore, it becomes important that an employer creates a rule, if it does not already exist, making it an offence to make inappropriate comments, defame an employer or expose confidential information in a public forum. An employer may go further and stipulate that a public forum includes social media.”

She adds that employers should create comprehensive social media policies rather than incorporate policies into employment contracts, as policies may be amended without an employee’s consent, provided they do not form part of the employee’s employment contract.

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