People seem to loose their inhibitions when the veil of social media covers them. We have become more accustomed to sharing our personal stories online. This has opened opportunities for disgruntled employees to air their views on their employers to their social media following. Can derogatory remarks about an employer lead to a fair dismissal of such an employee?
Courts have held that it is fair for an employer to dismiss an employee for intentionally posting offensive statements about his/her employer on a social networking website, like Facebook.
In Sedick & another v Krisray (Pty) Ltd  8 BALR 879 (CCMA), employees were dismissed for bringing the company’s name into disrepute by publishing derogatory comments about the owner of the company on Facebook. The employees claimed that the employer breached their right to privacy by accessing their profiles on Facebook.
The employees, De Reuck and Sedick, worked for a fashion accessories company. The company’s Marketing Manager logged onto her Facebook account and navigated to De Reuck’s Facebook page because she wanted to send her a friend request. She was able to see everything on the employee’s Facebook wall without being given access as a friend. She came across numerous posts by Sedick and other employees where they had exchanged several snide remarks, which included the following: “Trust me, no one can put up with so much [s****] when the [f******] kids join the company!”; “From so-called ‘professionalism 2 dumb brats running a mickey mouse business”; “… today was hectic with Frankenstein”; “What an idiot”; “A very ugly man with a dark soul”.
What about Privacy?
The Commissioner noted that, in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002, section 4(1), “Any person … may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence”.
According to the Commissioner, the internet is a public domain and Facebook users have the option to restrict access to their profiles as well as the information that they publish. Because of the employees’ failure to make use of the privacy option, they had abandoned their right to privacy and the protection of the above mentioned act.
The employees argued that they had not damaged the company’s reputation because they did not directly refer to the company or anyone who managed it. The Marketing Manager and the Arbitrator agreed that the references to the company and its management were obvious, because the people who were reading the comments would probably have known what and whom they were about.
After considering what was written, where the comments were posted, to whom they were directed and by whom they were made, The Commissioner held that the comments brought the employer’s good name into disrepute with persons both inside and outside the organisation.
The Commissioner confirmed that a dismissal under such circumstances could be fair provided the employer follows the correct procedures and as long as the evidence used against the employee has not been illegally obtained in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act.
In the ever-changing landscape of social media one would do well to keep some things off the air. Information that you post on the internet is easily accessible by just about anyone with a smartphone and internet connection. Why not put your social media time to good use.
Gunstons Attorneys is an active player in the social media space.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.