Social Media – Do Not Tell Me What To Post Or Like!

Article by Tiekie Mocke, Manager: Legal Department

A couple of weeks ago, a friend of mine fell victim to a syndicate that used diversions to get close enough to steal not only her handbag but a trolley with her shopping. When we spoke, she said to me ‘my handbag with my whole life in it is gone!’ The irony, in any such an ordeal, is that a stolen phone does not destroy social media profiles. A new phone and downloading the necessary application and you continue as if there was no interruption.

Sitting in a restaurant or outside during lunch time or spending time with family, the one thing that saddens me to no extent, is to see a group of people; a couple; a family/friends together, but no one talks to one another, they are all on their phones. Somehow we have lost the ability to speak to each other, it has become the norm to lash out on a faceless social media platform, rather than to speak to the person in front of you.

What if your ‘lashing out’ on Facebook, after hours/in a restaurant/with family and friends, linked you with your employer?

Facebook – The link between the conduct and the employer

An EDCON employee, Teresa Cantamessa (Employee), on annual leave during December 2015 was watching Carte Blanch. The program looked into, the then, President Zuma’s reshuffling of the cabinet that was estimated to have caused a loss of between R250 to R500 billion to the South African economy.

The employee, irate by what she had seen, posted the following on Facebook: “Watching Carte Blanch and listening to these fucking stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president… President my fucking ass!! #zumamustfall This makes me crazy ass mad.” (sic)

The employee’s Facebook profile stated inter alia that she was employed by EDCON as a Fashion Buyer. A client of EDCON reading the post wrote a letter to EDCON in which she stated that “In light of recent occurances [sic] in our country I felt it my duty to act on Ms Cantamessa’s post. Her bio indicates that she works for Edcon and therefore associated her social media with the organisation. Knowing how entrenched Edcon is in the black community I would like this to be dealt with in a serious manner that speaks to the sentiment of most South Africans; which is not to tolerate racism of any form…” The client demanded action against the employee. EDCON dismissed the employee after a disciplinary hearing and recorded that ‘…you made an inappropriate racial comment on Facebook. Such action placed the Company’s reputation at risk and has breached the employment trust relationship.”

Aggrieved by the dismissal, the employee referred an unfair dismissal dispute to the CCMA. The Commissioner held the dismissal to be unfair and award the employee 12 months’ compensation. The rationale for the award was that the Facebook post was done whilst on leave; employment connection was only mentioned on her profile; the EDCON’s Social Media Policy and EDCON’s Internet Policy only made mention of the usage related to the EDCON’s equipment and internet and the social media content was on Cantamessa’s own personal device outside of working hours; the EDCON’s Code of Ethics relates to conduct whilst at work only; and inconsistency in that colleagues who liked the post only received warnings.

EDCON did not agree with the award and took the award on review to the Labour Court (LC). The LC, Edcon Limited v Cantamessa and Others (2020) 41 ILJ 195 (LC), held a different view. The question raised was whether an employer could take action against an employee for conduct not affiliated with the employee’s work and the remark not addressed to the employer. The Labour Court confirmed that when there is a link (nexus) between the employee’s conduct and the employer’s business, the employer has the right to subject the employee to disciplinary action.  The court further held that there was a nexus between the employee and EDCON through her Facebook profile. The employee being on leave and acting outside normal working hours did not take away the fact that she did cause harm to EDCON. The widespread circulation had resulted in the threat of customers taking away their business and the negative social media image of the employer. 

WhatsApp – The link between the conduct and the employer

Discovery Health’s employees started a WhatsApp group to support each other after contracting Covid-19 in April 2020. The purpose of this WhatsApp group quickly changed from support to conspiracy. Discovery Health chief executive Ryan Noach, confirmed that the discussions on this WhatsApp group ‘revealed clear and explicit details of these employees … initiating, planning and coordinating efforts to maliciously shut down Discovery…’

Discovery Health became aware of these messages when a whistle-blower came forward. The result was the dismissal of 10 employees in August 2020. As per Noach these dismissals could have been prevented ‘Our expectations are that staff raise concerns internally, affording us the opportunity to clarify or resolve any items that may give cause to whatever concerns they may have…’

Conclusion

Social media platforms are open to public scrutiny. You are at liberty to voice your opinion and to comment on other posts but you must be cognisant of the possible nexus between you and your employer. Your conduct may result in dismissal. Even WhatsApp messages, once the content is revealed, is open to scrutiny. Rather voice your concerns or unhappiness directly with your employer. Or speak to us, we will be your voice!

MISA – Just a phone call or an e-mail away!

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