In a time when most people’s lives are voluntarily exposed on social media sites and social and political views are equally freely divulged on blogs, it begs the question whether an employer has the right to terminate an employment relationship based on inappropriate comments made through such channels or for excessive usage of emails for personal purposes. Amelia Hart explains.
The answer is the typical legal one: it depends on the circumstances. Clear cut policies and the inclusion of certain peremptory clauses in an employment contract would entitle an employer to dismiss an employee for defaming it on a social media site because of the breakdown of the trust relationship between the parties.
RICA allows for the interception of communications of employees for the purposes of investigating or detecting the unauthorised use of that telecommunication system.
6 of RICA, coupled with the existence of a valid policy allowing the employer to intercept communications, preventing an employee from exploiting its employer’s telecommunication system, and rendering such exploitation a dismissible offence, will assist an employer in justifying an alleged unfair dismissal.
In South African law, the fundamental guiding principle when it comes to disciplining and ultimately dismissing an employee is the existence of a trust relationship between an employer and an employee. In circumstances where an employee (during or after working hours) defames or discloses confidential information on a social network and this causes damage to an employer’s reputation and potentially results in the loss of business, an employer can usually justify the dismissal of such an employee.
An employer must prove, when disciplining and ultimately dismissing such an employee, that there was a link between the employee’s misconduct and the employer’s business interests and that the misconduct damaged the employment relationship irreparably.
In Fredericks / Jo B0rkett Fashions (2012) 1 BALR 28 (CCMA), an employee was dismissed after making derogatory comments about her employer on Facebook. The employer claimed that the employee had breached the contract and damaged the name of the company as well as its reputation. The employee’s dismissal was deemed to be fair. It was held that the employee had used the wrong platform to address her grievance.
Consequently, an employer has the prerogative to curtail inappropriate comments made on blogs on social media sites in its policies by making such misconduct a dismissible offence provided that it destroys the trust relationship. An employer may implement email and internet policies regulating the use of internet and email.
In order to justify a dismissal as a result of excessive usage of emails for personal purposes during office hours or as a result of an employee’s disparaging or derogatory or other inappropriate damaging remarks on a social media site, it is prudent for an employer to have an email policy that specifically stipulates that all email addresses and email communications remain the property of the company and to prohibit unacceptable usage.
Such a policy should prohibit an employee from making derogatory or inflammatory remarks about or to the detriment of its employer either by way of internal email or on external blogs and social media sites.
Amelia Hart is an Associate in the employment & labour division of Norton Rose South Africa.
