There are cases of employees posting sensitive or disrespectful information and messages about their employers online. This might seem like an innocent joke with the people on your social media feed, however, the backlash is far more serious than that. The conduct of employees on social media platforms is also more frequently exposing employers to the risk of vicarious liability and brand damage.
In considering the risks to employers (and their employees), it is necessary to keep in mind:
1. the impact of social media on the Constitutional rights to dignity, privacy and freedom of expression;
2. the risks that defamatory or harassing statements may result in vicarious liability for employers;
3. the risk of work place harassment and cyber-bullying and the impact of this conduct on the work environment; and
4. what conduct may justify disciplinary action and even dismissal.
What if an employee posts something negative about their employers?
An employer does have recourse against employees whose social media blunders cause brand damage, or result in the disclosure of confidential information or vicarious liability. The CCMA has accepted that certain conduct on social media may warrant disciplinary action. However, the ordinary principles of fairness and equity apply. When investigating such conduct, care must be taken not to unlawfully infringe rights to privacy and the provisions of the Regulation of Interception of Electronic Communications Act.
In the case of Beaurain v Martin NO & others (2014), Mr Beaurain, was employed by Groote Schuur Hospital. During his employment, he raised various complaints regarding health issues at the hospital. Each complaint was investigated and he was informed that the complaints were without merit. Getting no joy from the hospital, Mr Beaurain started posting his complaints on Facebook. Eventually, the head of Mr Beaurain’s department addressed a letter to him to inform him that he was to stop posting his claims pertaining to health risks at the hospital, on social media. Mr Beaurain did not heed this instruction. This resulted in another letter in which was given a final warning to stop the conduct.
After an angered Facebook post where he attacked the state of the hospital, he was charged with gross insubordination and dismissed. Mr Beaurain referred a dispute to the Labour Court. His dismissal was found to be fair.
Not all comments on social media that are critical of an employer will warrant dismissal. For example, if the post constitutes conduct in alignment with a protected strike or amounts to a protected disclosure, dismissal is not allowed. However, employees should be careful not to post information regarding their employers that could put the brand name in jeopardy or reveal confidential company information.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)