The South African social media stage is perceived by many social media users as a space to express themselves, unfortunately at times without any regulation whatsoever, resulting in malice, insults, discriminatory remarks as well and defamatory posts. Hence the question arises “Does what I post outside my working hours and employment scope have any legal repercussions on my legal contract with my employer?”
Well, it is of significant importance for one to be cognizant that what one posts and shares on social media might have a detrimental effect on one’s employment. Primarily because an employee’s conduct outside the working hours, as well as employment scope, does have either a positive or negative impact on their relationship with their employer. Unfortunately, physically being outside the vicinity of your workplace and not being occupied with employment responsibilities but private activities, doesn’t exempt the employer from being interested in the employee’s conduct. This practice is influenced by the Labour Relations Act(the 1954 Labour Relations Act, replaced in 1995), which was historically applied by the Industrial Court.
For instance, in the case of Van Zyl v Duvha Open Cast Services(1995) 1 ICJ 8.12.11, the Industrial Court discovered that a fight between colleagues even outside the working hours had a negative effect on their working relationship in the employment environment which makes it difficult if not impossible for them to proceed to work together. Furthermore, it is fundamental that an employment relationship is rooted in trust and good faith. Therefore any conduct by an employee that results in mistrust may be a justifiable factor in ending the working relationship
Back to the social media context, in the context an employee posts/shares content on the social media platform which is regarded as one that results in mistrust between the employer and the employee, there is a provision for disciplinary measures to take place. It is however still important that the employer allows the employer to plead their innocence or guilt and what they deem would be appropriate disciplinary repercussions for their conduct before the employer makes any final decision.
Perceptive 1: Direct Reference To Employer.
In the event that an employee makes direct reference to their employer on his/her social media post, such an occurrence makes it effortless for the employer to prove that the working relationship has been rendered intolerable and possibly irreparable which will negatively impact productivity and thus profitability. With the working relationship being negatively impacted, it brings about justification for dismissal.
For reference purposes: National Union of Metalworkers of South Africa obo Zulu / GUD Holdings (Pty) Ltd (2015): in which the employee posted on Facebook his desire to “bomb and burn” the employer.
Perspective 2: Indirect Reference To Employer.
What then transpires when an employee expresses a view on social media that is regarded as discriminatory/ defamatory/racist or politically radical? Does this bring the name of the employer into disrepute by virtue of the employee being associated with the employer?
In the context of discriminatory and defamatory content, the “good faith” obligation in the employment contract does imply that an employee should not participate in anything or conduct himself/herself in any manner which will bring the employer into disrepute. Therefore any conduct that could result in the employee being associated with the employer and thus influencing the affected perspective on the company negatively, a disciplinary measure could be instituted.
For case law reference, do check out: Salstaff obo Magubane v South African Airways (Pty) Ltd (2002) 11 CCMA, an employee(a flight Attendant) was fired after being found guilty of bringing the business into disrepute by being drunk while on a flight.
In the event that you seek legal counsel and representation in terms of Labour Law matters relating to social media usage & management, kindly communicate with Manzankosi Corporate Legal Consultancy via WhatsApp on 067 147 2323 | 081 712 1114 or alternatively, www.manzankosiclc.co.za.
