Social Media – I will post what I want outside of working hours!

Social Media – I will post what I want outside of working hours!

Who would have thought ten or fifteen years ago that when you have your phone with you, you will have the world in your hands! Facebook, WhatsApp, Twitter, e-mails, News-24… you name it! We become so accustomed to being able to connect, give an opinion, comment on posts, make statements or even threaten those we perceive to have done us wrong on a social media platform that we tend to forget that more than friends are watching.

Facebook

An EDCON employee, Teresa Cantamessa (Cantamessa), 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.

Cantamessa, 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)

Cantamessa’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.demand that they take action.” (sic)

Dismissal

EDCON subjected Cantamessa to a Disciplinary Hearing and subsequently dismissed her and recorded the reason for dismissal as “On the 20th of December 2015, 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, Cantamessa referred an unfair dismissal dispute to the CCMA. The Commissioner found in her favour and held the dismissal to be substantively unfair on the basis of inter alia:

• 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;
• Inconsistency in that colleagues who liked the post only received warnings.

The outcome of “Unfair Dismissal” followed an award of twelve month’s compensation that EDCON had to pay to Cantamessa.

EDCON did not agree with the award and took the award on review to the Labour Court.

The link between the conduct and the employer

The Labour Court in Edcon Limited v Cantamessa and Others (2020) 41 ILJ 195 (LC) held a different view. The question that needed to be considered 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, then the employee may be subjected to disciplinary action.  The court further held that there was a nexus between Cantamessa and EDCON through her Facebook profile, therefor regardless of Cantamessa being on annual leave and acting outside normal working hours, she did cause harm to EDCON as the widespread circulation had resulted in the threat of customers taking away their business and the negative social media image of the employer. 

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.

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Kindly utilise the following e-mail addresses and links for assistance during this time:

Employer UIF/TERS Submissions                   UIFClaim@ms.org.za

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