Employees And The Use Of Social Media
Social media can be a great way for people to connect and learn from each as well as the various sites that they follow. However, it comes to damaging the reputation of an employer (of the employee themselves), the power of social media cannot be stressed enough.
Bringing the employer’s name into disrepute
The CCMA, bargaining councils and the Labour Courts have accepted that derogatory statements on social media platforms which bring the employer’s name into disrepute or which negatively affects the workplace environment, regardless of whether it was on or off duty, may be a fair reason to dismiss the employee. Employees need to be especially careful regarding what they post, regardless how innocent (or justified) they may feel it is. One a post on social media goes viral and an employer feels that their name has been put into disrepute, this may means grounds for dismissal. It is important noting that this can occur whether or not, the employee has listed where they are employed either in that specific platform where the post was made or on another platform entirely.
Social media and misconduct
Some examples of social media misconduct are (but not limited to):
- employees who use company IT systems and servers to access social media;
- employees who access social media during work hours;
- employees who make disparaging comments about their employer, managers fellow employees and/or vendors on social media; and
- employees who make racist remarks on social network sites or who circulate racist, discriminatory or pornographic materials or cartoons.
Employer’s vicarious liability
In recent times, the have been various instance where employees have been given warnings, demoted and sometimes ultimately dismissed for the things they have posted on their personal (private) social media pages. Some of these instances is where the said employee had posted a disclaimer along the lines of “the views expressed on this page are my own”. This disclaimer has not absolved them and/or their employers of liability.
In F v Minister of Safety and Security 2012 (3) BCLR 244 (CC), the Constitutional Court determined that, an employer may be liable for the conduct of its employees if:
- there is a sufficiently close link between the employee’s own interests;
- the purpose of the act; and
- the business of the employer,
- even if the employee acts solely for his or her own purposes.
Posting derogatory statements on social media falls squarely within this definition of vicarious liability.
Social media policies
In order to mitigate the risk, it has been suggested that employers should develop social media policies which provide clear guidelines and rules as to the boundaries for social media as well as what is regarded as acceptable and unacceptable use of social media. These guidelines should apply to both, while the employees are at work and while off duty. Such policies should be backed up with extensive training of both employees and managers and they should be strictly enforced. For assistance on advice in drafting a social media policy as well as policies concerning electronic communication, please feel free to contact us at firstname.lastname@example.org