Can an employee face dismissal for “social media misconduct”?
Employees/members are urged to be very careful when it comes to social media and should take the time to familiarize themselves with the company’s social media policies.
This is so because certain conduct on social media, depending on the circumstances, may warrant dismissal.
Dismissal may be deemed to be appropriate when a social media post contains derogatory, derisive or disparaging remarks about the employer and brings the employer’s name into disrepute. It could also be seen to render the work relationship intolerable, if the employee directs derogatory and offensive comments at his employer or co-employees.
Further, what an employee does after work generally falls outside the scope of the employment relationship and accordingly the employer has no right to discipline an employee for this conduct. However if it can be shown that there is a link between this conduct and the employer’s business, an employer may be entitled to discipline the employee.
One of the cornerstones of the employment relationship is the duty of good faith that an employee has to his/her employer. Therefore, an employee’s tirade on a social media platform about their employer, fellow employee, customer or client could easily violate that duty of good faith.
There have been numerous matters where employees have been dismissed as a result of derogatory Facebook posts and the CCMA have found these dismissals to be fair.
An employee’s right to privacy and freedom of expression does not make their actions on social media immune to an employer’s scrutiny, particularly where the company’s reputation and clientele is at stake.
The High Court dealt with some of these issues in the case of Harvey v Niland and Others (ECG) 5021/2015. According to Plasket J, the common law rule preventing admission of unlawfully obtained evidence is not absolute, but subject to the judge’s discretion. The case further illustrates that the right to privacy is not absolute.
In a nutshell, employees are encouraged to be extra cautious and familiarize themselves with the company’s social media policy and to think before they go on a tirade on social media. Your actions may have far reaching consequences, so rather err on the side of caution.
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