In today’s age there are many platforms available in media for one to express oneself. The question that perpetuates as a result thereof is whether one can dismiss an employee in the event that derogatory comment is made on such platform in respect of the workplace.
As the aforementioned is relatively new in South Africa, there is no express legislation dealing with it. Employers need to consider current statute and common law for direction, such as the Constitution in terms of rights to privacy and freedom of expression.
The right to freedom of expression of the employee is coupled with the right to the dignity of the employer. In terms thereof the right to a good name and reputation falls within the larger scope of the right to dignity and generally holds a higher place in the law.
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It was held in Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 and Fredericks v Jo Barkett Fashions  JOL 27923, the employer was entitled to access the wall posts as the employees had ‘open’ Facebook profiles. The two employees’ services were terminated as a result of derogatory Facebook updates. In both instances the CCMA found that the employees were fairly dismissed as their privacy was not encroached upon when the employers came across the updates. The employees’ privacy settings were not restricted and could be accessed by anyone who came across same. The employers could thus access the posts and intercept same in accordance with the Regulation of Interception of Communications and Provision of Communications- related Information Act 70 of 2002 (FICA).
In the case of Smith v Partners in Sexual Health (non-profit) (2011) 32IJL 1470 (CCMA) , the dismissal was declared unfair when an employer stumbled upon the personal Gmail account of an employee who was on leave, they subsequently discovered e-mails between the employee and other outside parties divulging internal information pertaining to the company’s affairs. It was found that the initial access was per accident and subsequent findings were intentional, thus invading the privacy of the employee and infringing in terms of FICA.
In light of the above it is clear that the CCMA is considering the question of social media misconduct as serious and that they are not misguided by the ‘fable of special privilege, privacy and anonymity of employees online’. Although the CCMA are confirming the dismissals, they cannot use same as pre-meditated housecleaning rules, the normal rules of fairness and equity is relevant and must be applied equally to cybernetic labour relations.
ABOUT THE AUTHOR
Tamara Jooste joined the SEESA as a labour legal advisor in 2015. She obtained her Bachelor of Laws degree from the University of Fort Hare, and went on to complete her articles at Smith Tabata Inc. After her admission as attorney to the High Court, she embarked on her career at MM Jordaan Attorneys, specialising in civil litigation.