Think twice before you tweet

In the employment context, while there are several cases which confirmed the fairness of dismissals of employees who made disparaging comments about their employers or colleagues on social media, the recent events raise the question as to whether an employee can be appropriately disciplined and possibly dismissed for making inappropriate remarks on social media even if the remark is not related to his or her employment.

Can inappropriate conduct on social media, which is not related to the employment of the author, constitute misconduct outside the workplace?

While it may not be the conventional nature of an act of misconduct, the age of social media and technological advancement has changed the way in which we communicate and engage with other individuals and with the public. In his South African Social Media Landscape Report, 2014, Arthur Goldstuck, states that:

“Employees active in social media are becoming brand ambassadors for their respective brands, often outperforming the brands themselves on social media…”

It is important to note that the ‘brand ambassadors’ of a company are not confined to a list of the marketing and public relations employees of the company but every employee of the company becomes a brand ambassador as they in some way or the other publicly display their association with the company. For instance, employees who update their Facebook or LinkedIn profiles to indicate their employment with the company, display their association with and are brand ambassadors of the company much in the same manner as employees who deal directly with customers and the public as outlined in the course and scope of their employment.

Accordingly, while employees should ensure that they positively influence public perspective in order to take the brand of their employer forward, employers must take proactive steps to ensure that they are protected from any actual or potential reputational damage caused by inappropriate or unsavoury remarks made by their brand ambassadors. The moment that a comment or remark is posted online, there is no turning back. Posts can be shared instantaneously and screen shots of posts are generally saved for future use. Therefore the ability to delete unsavoury posts and even the author’s account, does not create a guarantee that the actual post will be deleted from virtual or actual reality.

According to many of the UK Judgments relating to social media misconduct, the Courts have held that it is not necessary to prove actual damage to the reputation of the company, but that it will be sufficient to show that certain remarks have the potential to cause reputational damage.

There are no reported Labour Court judgments in South Africa which deal with the dismissals related to online misconduct outside the workplace. Our Courts will therefore look to the precedent set by the tribunals and Courts in the UK and the decisions by the UK courts will set the trend on how our Courts deal with this new but rapidly advancing issue.

In the case of Weeks v Everything Everywhere Ltd ET/2503016/2012, the UK Employment Tribunal was required to deal with an unfair dismissal dispute which arose out of the employee’s misconduct on social media. While the misconduct related to comments about the employee’s workplace and colleagues (these similar cases have already been dealt with by the CCMA in South Africa), the Judge made an important comment about privacy and online misconduct as follows:

“many individuals using social networking sites fail to appreciate, or underestimate, the potential ramifications of their ‘private’ online conduct. Employers now frequently have specific policies relating to their employees’ use of social media in which they stress the importance of keeping within the parameters of acceptable standards of online behaviour at all times and that any derogatory and discriminatory comments targeted at the employer or any of its employees may be considerable grounds for disciplinary action. There is no reason why an employer should treat misconduct arising from the misuse of social media in any way different to any other form of misconduct.”

It is therefore highly likely that our Labour Courts, in addition to following the UK case law on social media misconduct, will follow our own case law in respect of misconduct committed outside the workplace. In the matter of City of Cape Town v SA Local Government Bargaining Council & Others (2011) 32 ILJ 1333 (LC), the Labour Court upheld the dismissal of a senior employee who was found to be party to the fraudulent issuing of a drivers licence. The Labour Court found that the dishonest conduct of the employee went to the heart of the employment relationship and was essentially destructive of the employment relationship.

Employers are advised to implement stringent social media policies which deal with all eventualities relating to online behaviour and to ensure protection against potential or actual reputational damage to the company.