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Whistle-blowing on Social Media

Whistle-blowing on Social Media

There’s been various law cases that have promulgated the fact that social media posts can and will get employees fired. Employees expressing their opinions about their employers have been warned to ensure that their privacy settings are in place, as most social media accounts are by default open to the general public. Various defenses have been brought up by disgruntled employees – from right to privacy to invoking the Regulation of Interception of Communications and Provision of Communication-related Information Act.

A case study of whistle-blowing on social media – employees taking to Facebook to report wrongdoings

However, in Beaurain v Martin NO & others (2014), the possibility of posts on Facebook constituting protected disclosures was explored. The Protected Disclosures Act 2000 was legislated to encourage honest employees to raise their concerns and report wrongdoing within the workplace without fear.

In the Beaurain case, Mr Beaurain was employed by The Groote Schuur Hospital. During his employment in 2009 he raised numerous internal issues regarding health hazards at the hospital. All his complaints were investigated and he was informed that they did not have any merit. Dissatisfied with the hospital’s responses, Mr Beaurain resorted to voicing his concerns on his Facebook profile.

The hospital management informed him to refrain from posting unsavoury complaints on social media pertaining to the hospital. Mr Beaurain did not take the instruction well and continued with his crusade against his employer and posted the perceived health hazards. The hospital management gave him a final ultimatum to which he responded by making further posts. A disciplinary hearing was convened where Mr Beaurain was charged with Gross Insurbodination after it was found he posted the following on his Facebook:

“…the management of the hospital are currently in the process of locking the doors to the filthy toilets in the service areas of the hospital. The locked toilets will then be inaccessible to most people. But the majority of these toilets are still very filthy. Most of these toilets are still in such a terrible state of disrepair that it is impossible to flush the waste way. These filthy toilets are causing foul air to enter the air conditioning system and be pumped into the hospital wards. I took the pictures of the toilets in this album on Friday, 9 October 2009. The management of [the] Hospital do not succeed in seeing to it that the engineering department at the hospital fix these 15 toilets that are locked up and hidden away in the services areas of the hospital. I suspect that most of the managers just do not care.”

Mr Beaurain was subsequently dismissed on the charge, and he approached the Labour Court for recourse where he claimed he was dismissed for making a protected disclosure.

The court held that: “In the evidence before it, Dr A made it clear that the problems with the toilets on the interfloor area – that were not being used by patients or visitors did not pose any health hazards. It could not lead to the spreading of bacteria through the air conditioning system. Dirty toilets could post a health risk only if users physically touched them and then touched other surfaces, but this was not a concern that arose in this case”. The judge further stated that “the applicant’s belief, on the evidence before me, was not reasonable.”

Disclosing information responsibly

The court did, however, emphasize that an objective of the Protected Disclosures Act is to provide procedures in terms of which an employee can disclose information in a responsible manner. That information should be disclosed in a responsible manner which balances the employer’s interest in protecting its reputation against the public interest in disclosure of irregularities.

What does this mean for employers?

Employers would need to attend to employees’ grievances more swiftly, especially in cases where is a matter that borders on the employer’s goodwill and reputation, i.e. a failure to comply with standards or pertinent safety hazards in the workplace so as not to be find themselves in limbo where employees post such issues on social media and employers dismiss them unwittingly.

ABOUT THE AUTHOR

Pilot Ngake is employed as a SEESA Labour Senior Legal Advisor. He Joined SEESA in 2011 as a legal assistant and was promoted to Legal Advisor in 2012. He became a senior legal advisor in May 2015. He obtained his Bachelor of Laws degree from the University of South Africa.

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