A blog post

May Employees discuss their terms and conditions of employment on a social platform?

Posted on the 07 September, 2011 at 10:11 pm Written by in Social Media

In the USA, a circuit court judge has just ordered an employer, Hispanics United of Buffalo, Inc, to re-instate 5 employees who were dismissed by their employer for discussing conditions of employment on Facebook. The discussions included sarcastic comments and profanity. I have attached the link to the original post for those of you who may be interested. Labour Law, Take on social mediaWould the CCMA have ruled similarly on the issue, had this scenario played itself out in a South African Workplace? In South Africa two pieces of legislation are applicable to this situation. The Basic Conditions of Employment Act 75 of 1997 as amended and the Labour Relations Act 66 of 1995 as amended. S78 of The Basic Conditions of Employment Act gives employees the right to discuss their terms and conditions of employment with other employees, the employer, or any other person. Some employers try to stop such discussions occurring between employees and third parties, by adding unlawful clauses into contracts of employment, which provide that an employee is to keep the provisions of his/her contract of employment (and particularly  details of remuneration) private and confidential. Although such a clause is not legally enforceable, the rationale behind keeping it in the contract is obvious. The Labour Relations Act deals with disciplining and dismissing employees fairly. Disciplinary action against an employee is only fair if the employer can show that, firstly it had a valid legal reason for taking disciplinary action and secondly, that a fair procedure was followed in taken the disciplinary action. Misconduct (bad behaviour) is recognized as a lawful reason to take disciplinary action against an employee. The severity of the disciplinary action taken will depend on the seriousness of the employee’s misconduct which the employer must prove occurred. Employees who discuss their terms and conditions of employment whether on a social platform or elsewhere, it would seem, have the right to do so in terms of S78 of the Basic Conditions of Employment Act. And, there would be no legal justification for an employer to take disciplinary action against any of these employees, even if the discussion sparked consternation and ultimately lead to one or more of the employees lodging a grievance, as a result of having discovered, for example, that they earn different salaries yet do the same job. However, does discussing terms and conditions of employment, on a social platform, differ to complaining and swearing about them? The answer - it depends. If the complaining and the nature in which it is expressed on a social platform, or any other platform for that matter, tarnishes or could foreseeably tarnish the reputation of the employer or cause the employer harm of other sorts, then I believe the employer would have a justifiable reason to take disciplinary action against the employee/s concerned. Whether or not the employee/s’ conduct warrants dismissal will have to be decided in light of all the facts of the case. For example, if employees had lodged complaints with the employer regarding certain conditions of employment and these were overlooked or inadequately addressed by the employer, this may act as a mitigating factor in deciding upon an appropriate sanction for the employees concerned. For those of you who read the original post, I found it interesting to observe how the judge in this matter, ruled that the actions of the 5 employees fell within the definition of what is known as Protected Concerted Activity under the USA’s National Labor Relations Act. The definition of protected concerted activity is described as follows in the post: “Concerted activities are those engaged in with or on the authority of other employees, and not solely by or on behalf of the employee himself. Put simply, concerted activity is a call to action. Examples include two or more employees: (a) addressing their employer about improving their working conditions and pay; or (b) discussing pay or other work-related issues with each other.” The learned judge in the case ruled that the conduct of the 5 dismissed employees fell within the scope of this definition! I say WOW to that agility in legal interpretation. In the near future I have no doubt that our South African Courts and the CCMA will also have to display some WOW legal gymnastics in determining cases involving social media @work. If you have any feedback on this post I would appreciate it.

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