Cape Town - While dismissals relating to social media
misconduct are generally being confirmed, employers cannot use employees’
online conduct to execute a pre-meditated house cleaning, Rosalind Davey, a
partner at leading corporate law firm Bowman Gilfillan, warned on Monday.
She was commenting on the recent spate of dismissal
decisions relating to social media by dispute resolution body, the Commission
for Conciliation, Mediation and Arbitration (CCMA).
Davey said normal rules of fairness and equity apply equally
to virtual labour relations, but warned employees to think twice before making
derogatory statements about their employers on social media platforms like
She said that while there has not yet been a superior court
test case, the recent CCMA rulings are instructive.
“The extent to which an individual’s privacy is protected
when misusing social media platforms would be more clearly established by a
High Court test case.
“Similarly we would love to establish the extent to which
John Doe’s employer is entitled to intercept his online communications, and
most of all, which one of these scenarios trumps the other.
“Until then, it is interesting that CCMA commissioners have
been inclined to confirm the dismissal of employees who have made derogatory
comments online about their employers on the basis that, in these
circumstances, an employee’s right to privacy may be limited or even
Lenja Dahms-Jansen, an associate at Bowman Gilfillan added that the CCMA is generally the first choice for employees to challenge their employers. Although its decisions are binding on the parties and can have material and often costly consequence for employers, these decisions are not legally binding precedent.
Dahms-Jansen listed two examples where the CCMA confirmed
the “Facebook” dismissals:
In Sedick & another v Krisray (Pty) Ltd certain
employees made derogatory comments on Facebook about the management of the
employer. When the marketing manager of the employer set up her own account on
Facebook she found that she could access all the posts on the employees'
profiles and was able to read their comments.
The employees were subsequently dismissed. In challenging
the fairness of their dismissals, they alleged that the employer had suffered
no damage because their posts had not referred to anyone by name.
also alleged that by accessing their profiles, the employer had infringed on
their rights to privacy.
Said Dahms-Jansen: “The commissioner considered the
Regulation of Interception of Communications and Provision of
Communication-Related Information Act 70 of 2002 (Rica), which regulates the
interception of communications and decided that the employer was entitled to
access the discussions as the employees had ‘open’ Facebook profiles.
“The commissioner found that they had failed to use their
privacy options and had thus abandoned any claim to privacy and to the
protections of Rica.
"The commissioner confirmed that the comments brought the
employer’s reputation into disrepute and confirmed the dismissals.”
In Media Workers Association of SA on behalf of Mvemve and
Kathorus Community Radio, an employee posted remarks on Facebook criticising
the organisation's board, and its station manager, who he claimed was a
The commissioner based his decision confirming the dismissal on the
fact that the employee had tarnished the employer’s image by posting unfounded
allegations on Facebook without having addressed them internally first.
In considering the value of these decisions,
Davey said it is clear that the commissioners are taking the issue of social
media misconduct seriously and that they are not prioritising issues of special
privilege, privacy and anonymity of employees online.
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