Nothing more than innocent banter…?

 An Employer’s recourse against an employee’s social media blunders.

By now, almost everyone in South Africa has heard of Penny Sparrow and her widely condemned posting of derogatory statements on a well-known social media platform.

What employers may not realise is that:
• There has been a spike of cases of this nature heard in the CCMA and Bargaining Councils
• Employees either openly reveal where they are employed, or are associated in some way or another with the company brand
• Companies may face a backlash from customers when electronic posts go “viral”
• Protecting your company’s reputation and its online profile is becoming ever more important

So what can you, as the employer, do?
• Firstly, don’t bury your head in the sand or assume you’re immune. Facebook has 12 million users in South Africa, and twitter has over 6 million local users!
• Design a solid social media strategy – get advice on this, if necessary
• Educate your staff
• Monitor the situation – set up Google Alerts for any mention of your company name
• Take disciplinary action where appropriate

So can employees be disciplined (and even dismissed) for making inappropriate remarks online? If you answered yes to this question, you would be right. The lines have become blurred in respect of conduct “inside” and “outside” of the workplace. If there is a link between the employee’s conduct and the employer’s business, an employer will be entitled to discipline an employee – even though the conduct occurred after hours and outside of the workplace.

All employees have a fiduciary duty to protect and promote the employer’s business, and it is a common “cyberspace fallacy” to think that this fiduciary duty just falls away when the employee clocks out at 4:30pm. The cardinal test is not where or even when such conduct occurred, but whether such conduct negatively affected the employer-employee trust relationship.

Having said this, one still needs to comply with the principles of substantive and procedural fairness, the bare essentials of which are that the employer must:
• Undertake an investigation and conduct a hearing of some sort
• Give the employee the right to make representations at the hearing
• Provide the employee with the company’s written findings and sanction
In turn, the maxim that “he who alleges must prove” is equally valid in cases of social media misconduct. At the enquiry, the employer will therefore need to present proof that:
• The offence was committed by the employee
• The employee was aware of (or must reasonably have known about) the workplace rule
• The rule was a reasonable rule
• The company applied the rule consistently
• The employee’s conduct brought the Company’s name into disrepute or caused other harm
• The sanction was appropriate, after having taken mitigating factors into account

Technology (and particularly social media) is inseparably integrated into our lives, and there are lessons for both employers and employees in this situation. Employers need to heed the risks and should have a social media policy in place which can be used (a). to educate employees; and (b). as a point of reference when taking formal disciplinary action. Employees for their part should exercise caution when posting comments in the public domain, and think twice before sharing content on social media. The era of unfettered freedom of expression on social media platforms has come to an end, and depending on the circumstances, certain forms of social media misconduct may warrant dismissal, if this is seen as intentionally or effectively breaking the trust relationship between the two parties.

Article by Carlo Torino – Labour Law Division