Those who are lucky enough to still be employed should bear in mind that their digital footprint, acquired during lockdown, may come back to haunt them. As far as the law is concerned, it is now legally permissible to be fired for your digital deeds — if it causes reputational harm and “advocates hatred that is based on race, ethnicity, gender or religion”, according to a court ruling.
Countless employees believe what they do in their personal social media accounts is a private affair, totally separate from their work. This belief in the existence of a divide seems to be bolstered during leave days and holidays. It is during such periods of leisure that employees feel most detached from work policies and regulations.
In the case of Edcon Ltd v Cantamessa and Others (2020), the labour court had to decide whether it was substantially fair to dismiss an employee for remarks that she made on her personal social media account. The court clarified, once and for all, the position of the law in respect of employers who wish to dismiss employees for comments made on social media.
Teresa Cantamessa was a specialist buyer employed by Edcon retail company. While on leave, she posted a message on Facebook referring to officials in the Zuma regime as “stupid fucking monkeys”. This happened in December 2015 when the cabinet was reshuffled. Her post indicated where she worked.
Her comment gained traction on social media and gave rise to a formal complaint being laid against her. She was called to a disciplinary inquiry and charged with making an unbecoming and racist comment. When the inquiry concluded its business she was dismissed. The labour court, in the form of Judge Hamilton Cele, had to decide whether her dismissal was fair.
The first issue the court considered was whether, in light of the fact that Cantamessa’s
comments had nothing to do with her work duties, her employer was allowed to discipline her. According to the court, the general rule in labour law is that an employer has no authority to discipline an employee for conduct that is not work related and which occurs after working hours.
Because of this general rule, the court held that outside of the workplace and after working hours, Edcon’s disciplinary policies were not applicable to Cantamessa.
Despite this Cele found that an employer may still discipline employees for conduct outside of the workplace if there is a connection between the employee’s misconduct and the employer’s business.
The court also found that: “The rights [to receive or impart information or ideas; of artistic creativity and academic freedom] do not however extend, inter alia, to advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. Ms Cantamessa … enjoyed the freedom to criticise government of the day where she felt it erred in its administrative manoeuvring. She however did not have the right to resort to racial slurs to vent her anger.”
The other issue the court had to determine was whether this connection resulted in the employer suffering any damage. The court held that the comment had exposed Edcon to reputational harm. Cantamessa’s comments attracted bad publicity and a number of customers threatened to take their business away. In the opinion of the court, Edcon’s reputation was at risk and thus justified Cantamessa’s dismissal.
The lesson here is that employees must be mindful of their behaviour online, as well be aware of their company’s social media policies and procedures. The failure to do so is likely to have upsetting consequences. You can get fired for bad tweets.