“Faceless” on Facebook?

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Social media and in particular Facebook have recently grown, as a means of communication and expression, with leaps and bounds within our society. On the one hand it has become a place where one can showcase yourself and those dear to you or share your views and sentiments regarding events being of interest to you. On the other hand, it is used as an electronic shoulder to cry on or even a place to vent your frustrations. It is however advisable, as you will see from this article, that one should preferably restrict such exposures to a select audience.

While much of the discussion in this article may be germane to social media in general, the focus is to look at Facebook more closely with a view of providing some guidelines for both employers and employees in determining when and to what extent Facebook posts may have a bearing on the employer or remain in the private domain of the employee.

Admittedly, the law concerning the use of social media, especially within employment law context, is still very under-developed in South Africa. We are therefore left to be primarily guided by the common law and the Constitution when dealing with Facebook posts considered to affect, or potentially affect, the employment relationship negatively.

Common law

In the instances where Facebook posts caused repercussions in the workplace, it was generally the employee who allegedly was at fault. This does not rule out that a company executive, theoretically, could use his/her personal Facebook account as a forum to deal with or influence a work-related matter, foolish as that may be. I am however not personally aware of a case where this happened.

Departing from the viewpoint that the employee normally is the person implicated in a Facebook controversy (posting derogatory or slanderous comments about the employer or the company), it is appropriate to take cognisance of an employee’s common law obligations towards the employer in order to create proper context.

At common law, an employee is obliged to always act in the best interest of his/her employer and never to compete with his/her employer. This stems from the premise that the employment contract is, by its very nature, a subordinate contract i.e. the employee is in the service of the employer and therefore subordinate to the employer. Consequently, the employee owes the employer a duty of good faith, honesty, confidentiality and a relationship free from conflict of interest. See in this regard Sappi Novoboard (Pty) Ltd v Bolleurs (LAC) and Ganes v Telecom Namibia (SCA).

It therefore stands to reason that to criticize and lambaste one’s employer in the social media and especially where postings are open to the public at large, fly in the face of the common law obligations associated with the employee.

Constitutional considerations related to expressing oneself on Facebook

In more than one of the cases dealing with derogatory remarks placed on Facebook, the employee relied in his/her defence on his/her constitutional right of freedom of expression (Section 16 of the Constitution), as well as on the constitutional right to privacy (Section 14 of the Constitution), arguing that the employer infringed on the latter right by accessing his/her Facebook page.

It has to be understood that no right, derived from the Constitution or contained in another statute, can reasonably be exercised, without observing the concomitant responsibility. In this regard the provision: Limitation of rights contained in Section 36 of the Constitution specifically requires that the rights expressed in the Bill of Rights, Chapter 2 of the Constitution (which includes the two sections mentioned in the former paragraph) are subject to limitation. This limitation is in terms of law and general application to the extent that it is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom, subject to certain factors listed under Section 36.

My personal understanding of the limitation of rights is that it intends to “balance” the rights citizens have in an open and democratic society, based on human dignity, equality and freedom. Example: Citizen A has (among others) a constitutional right not to be unjustly deprived of his/her right to property. Citizen B has (among others) a constitutional right of freedom of movement. When Citizen B, relying on his/her right to freedom of movement, trespasses on Citizen A’s property by perpetrating burglary, Citizen B’s right to freedom of movement is limited to the extent that it should not infringe on Citizen A’s right to property. No right is therefore absolute.

By the same token, the employee’s constitutional right to privacy and freedom of expression will be limited to the extent that it may not infringe upon the employer’s right to dignity and the right to freedom of trade, occupation and profession (simply put: the employer’s right to run its business).

Arguably, Facebook, as a vehicle of communication and expression, can be both a blessing and a curse, or this is what we learned from cases which were referred to the CCMA and Labour Court involving posts on Facebook.

Learnings from cases where Facebook posts became contentious issues between employer and employee

  • Mahoro / Indube Staffing Solutions (2011) CCMA

Mahoro posted comments on Facebook addressed to an unknown recipient, which comments, on face value, could be construed to be derogatory in nature. Certain employees, being colleagues of Mahoro, assumed that the comments were about them and filed a grievance against Mahoro. Mahoro however refused to attend the grievance meeting, arguing that her postings on Facebook did not involve the aggrieved colleagues and that her Facebook postings were her private communications, which were no concern of her employer or the complainants.

The HR representative gave Mahoro two options: either attend the grievance meeting or submit written reasons for not attending the grievance meeting. Mahoro chose the latter, but line management none-the-less charged her with insubordination for not attending the grievance meeting and ultimately dismissed her.

The Commissioner at arbitration found that the employer failed to establish a link or nexus between Mahoro’ s Facebook posts and the causing of disharmony in the workplace. Furthermore, the Commissioner found that, given that the employee was given the choice to attend the grievance meeting or to make a written submission explaining her non-attendance, she was entitled to disobey the line manager’s instruction to attend the grievance meeting. The dismissal was found to be procedurally and substantively unfair and 4 months’ salary was awarded to the employee in compensation.

The importance of a link or nexus between the Facebook post and the working environment is particularly emphasised by this case.

  • SACCAWU obo Haliwell / Extrabold t/a Holiday Inn Sandton (2011) CCMA

The employee, a PA to the GM, refused to obey an instruction from the GM and then filed a grievance against the GM. At the same time, the employee posted derogatory remarks about the GM on her Facebook page. In an attempt to address this apparent breakdown in the work relationship between the employee and the GM, the Operations Manager informed the employee that she will be transferred to another post. The employee responded per e-mail in a manner considered to be disrespectful and insolent. The employee was subjected to disciplinary proceedings and dismissed for gross insubordination and disrespect.

Subsequently, the matter was referred to the CCMA where the employee argued that her Facebook post was done in anger, provoked by the GM and that her privacy was infringed upon, as her posting on Facebook was accessed by the employer and then used to institute the disciplinary action instituted against her. It was however common cause that the employee failed to restrict access to her Facebook page to only those invited as friends. That left her Facebook postings open to all and sundry, basically being in the public domain. The Commissioner, at arbitration, rejected the employee’s arguments, also noting that the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA) will protect an employee’s right to privacy only where the necessary privacy settings to restrict access to personal information were put in place. This ties in with the civil law obligation we all have to reasonably limit or losses and damages.

Since the employee elected to post comments related to her grievance on her Facebook page, making no secret of who she is referring to in the posting, a clear nexus was established between what was posted on Facebook and her employment environment. The matter was further aggravated by leaving her Facebook page open for all to see.

The employee’s dismissal was found to be both procedurally and substantively fair.

Apart from the importance of a link between the Facebook page and the working environment, this case highlighted the irresponsibility of not restricting access to one’s Facebook postings, as well as using Facebook to lobby for sympathy and moral support concerning an internal employment matter.

Very similar situations occurred in the cases: Fredericks v Jo Barkett Fashions (2011) LC and Sedick & another / Krisray (Pty) Ltd (2011) CCMA, highlighting similar learning points.

  • Edcon Ltd v Cantamessa & others (2019) LC

This is a recent case dealing with derogatory and racist posts on Facebook by an employee and its negative influence on the working environment.

The employee concerned was the Specialist Buyer – Lady’s Wear at Edcon and as such a senior employee. While on leave, she watched Carte Blanche where the debacle regarding the successive replacement of Ministers of Finance by the then President Zuma was featured. Agitated by what she viewed on Carte Blanche, the employee then posted derogatory and racist remarks about the Government and the then President Zuma on her Facebook profile.

The Facebook posting caused a huge reaction. Several hundred tweets were placed on Twitter. An article appeared in the Sowetan newspaper exposing the postings. Edcon also received reaction from at least one prominent customer highlighting the association of the employee in question with Edcon (clearly evident from the employee’s Facebook profile), pointing out Edcon’s entrenchment in the black community and expressed her condemnation of racism, evidently expecting Edcon to act appropriately in dealing with the matter.

The employee was disciplined and eventually dismissed for posting inappropriate racial comments on Facebook, placing the company’s reputation at risk and having breached the trust relationship inferred by the employment contract.

The employee referred an unfair dismissal dispute to the CCMA where the matter progressed to arbitration.

The Commissioner found that the employee’s dismissal was substantively unfair and awarded the maximum compensation of 12 month’s salary. Without going into the detail of the Commissioner’s reasoning, he argued that her conduct had no bearing on the employment relationship, as she was on leave at the time; that a reasonable internet user would not have associated Edcon with the Facebook posting; that Edcon’s Social Media and Internet policies did not apply in her case as she did not use Edcon’s equipment and facilities when posting the comments concerned on Facebook; that Edcon’s Ethics Policy did not apply, as it only applies to employees “when at work” and that Edcon failed to prove conclusively that the Facebook post in fact impacted negatively, financial or otherwise on Edcon.

Edcon took the arbitration award on review to the Labour Court. The Court concluded that the employee’s conduct was well within reach of Edcon’s disciplinary authority, notwithstanding the fact that the offence committed was not expressly mentioned in the Disciplinary Code. This conclusion was premised on the establishment of the necessary link or connection between the misconduct and the employer’s business. To substantiate this conclusion, the employee’s Facebook profile clearly indicated that she is employed by Edcon and having regard to Edcon’s business interests and the competitive industry in which it operates, coupled with the position the employee held, the judge found that the employee’s conduct cannot be considered having had no impact on Edcon, but to the contrary.

As happened in the other cases mentioned above, the access to the employee’s Facebook postings was also not restricted and was accessible to the public at large.

The arbitration award was set aside, and the dismissal was declared substantively fair.

Once more, the importance of establishing the link or nexus between the Facebook posting and the business interests of the employer, being a crucial consideration, was illustrated by this case, thus enabling the employer to discipline the employee.

In conclusion

Given that our labour law regarding the use of social media within work-related context is still in the process of being developed, much confusion, misconceptions and uncertainty can be eliminated by dealing with Facebook usage in internal policies. Policy provisions and guidelines should address the do’s and don’ts of dealing with especially Facebook postings, emphasising that utilising Facebook must be such that it remains in the private domain of the employee and do not spill over into the business and working environment.

Facebook should, for instance, never be utilised as a platform for discussing a work-related grievance or sharing comments about an internal disciplinary matter. The employee’s personal life and employment life should ideally be kept apart and if Facebook friends are resorted to as “shoulders to cry on” when facing difficulties at work, the employee should at least ensure that such sharing of information remains restricted to close friends having one’s best interests at heart and being committed to observe confidentiality.

Keep in mind that the most sensible, effective and appropriate way of addressing work related matters, is by resorting to the procedures and forums which are specifically designed for such purpose and Facebook is certainly not such a forum, nor is it designed to be. Depending on how one utilises Facebook, one may just find that you are not necessarily “faceless” on Facebook.

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