The use of social media has rapidly lead to the convergence of “work life” and “private life”. Inherent to social media is making public what is traditionally considered private, which often includes controversial opinions and statements.
Although social media is an untapped source of business and marketing for companies, problems arise when employees post remarks about their employers or customers or colleagues on social media platforms such as Facebook and Twitter. Not only can it result in disciplinary action, but for many it has ended in dismissal for social media misconduct.
The applicable law
It is important to note that there are no separate “laws” that deal explicitly with social media in South Africa. The same employment laws that apply to employees in the real world applies to their conduct online.
Consequences of remarks made on social media platforms
Before the age of social media, employees could “let off some steam” or over-indulge in a social environment such as a party, with the employer being none-the-wiser. However, due to the prevalence of social media use both in and out of the workplace, what was previously shared among a few friends is now instantly accessible to millions of users. If the behavior is negative in any way it may result in negative consequences for both the employer and his business such as loosing clients, reputation and income. For the employee it may result in a dismissal.
An employment contract imposes a duty on an employee to act in good faith towards his employer. This means that the employee has an obligation to act honestly, in the best interests of the employer and not to bring the employer’s name into disrepute.
If the employee breaches the duty of good faith by damaging the reputation of the employer, or by directing derogatory and offensive comments at his employer or co-employees which negatively impacts the working environment rendering the work relationship intolerable, the employer is entitled to invoke disciplinary procedures which may result in dismissal.
Defenses raised by employees
Employees often use the following excuses or justification for on-line misconduct with the hope of evading disciplinary consequences:
- “It was outside office hours”
- “I posted in my personal capacity”
- “It was on my private page with private settings.”
The distinction between an employee’s professional and private life is not clear-cut in the social media age. The test is whether the employee’s personal activities, including posts on social media platforms, negatively impacts the employment relationship. If so, it may lead to dismissal.
As long as the employee can be associated with his employer in his online rants, whether the employer is named or not, it has the potential to get the employee into trouble.
In addition, privacy settings do not stop someone entitled to see your remarks from copying them and passing them on to others. Therefore, when posting, sharing, liking, updating, tweeting, or re-tweeting consider the consequences of acting publicly.
Note to employers
In order for a dismissal for social media conduct to be fair, the employer must show that there was misconduct by the employee which renders the continued employment relationship intolerable and the employer must have followed a fair procedure.