A blog post

Social Media @ work – questions begging answers

Posted on the 01 September, 2011 at 7:39 pm Written by in Social Media

Social media and the lawThe Sunday Times may well have published a rehashed story about “racist facebook” on its front page last weekend. For those of you who missed the hype- the story, which is apparently some 4 years old, is centred on a picture of a white male, holding his rifle while smirking over the body of a black child. The picture was apparently found on the facebook profile of one Eugene Terrorblanche. Although the point of interest in the story for many has been around the management, or apparent lack thereof at the Sunday Times, for me the story raised a number of questions around the impact of social media in the workplace, which are increasingly challenging management, HR and ER practitioners. If, for example, we were to assume that the white male in the offending photograph, is an employee of Company ABC:
  1. Would ABC be entitled to dismiss the employee, even though the photograph was unrelated to his employment and was taken some 4 years ago?
  2. If the employee used ABC's time and resources to post the offending photograph, could ABC be held to be vicariously liable for the actions of the employee, if fellow black employee’s found the material to be discriminatory?
  3. If the employee posts the offending photograph on his personal social media site and uses privacy settings to circle who is able to view the offending photograph, would ABC have any right to discipline the employee if the offending photograph came to the fore through the grapevine?
  4. What actions can ABC take to limit the risk of its employees using social networking sites as a pulpit for harassment/discrimination and other horribles?
These are but a few of the issues which are increasingly coming to the foreground in the new-age workplace. If you don’t have all the answers to these questions – you are not alone. InSouth Africa, we do not have a single Social Media Law to regulate the application and use of Social Media generally. Instead we have to integrate and apply (or at least try) a tapestry of different laws to the novel situations and ER issues that social networking is bringing to the foreground. Many labour lawyers in South Africa claim that the rules of engagement in the employment relationship remain the same and social media has merely changed the arena in which the rules apply, Granted, this is true to some extent, but there is territory where traditional legal paradigms do not provide satisfactory answers At the time of writing this post, there was to my knowledge, no reported case law from ourLabour CourtorLabour Appeal Courtdealing with the issue of Social Media in the workplace. Social Media and its impact on the workplace is largely unchartered legal territory inSouth Africa. I am also aware of only two cases, that have found their way to the CCMA for adjudication. These are briefly described further on. In theUSAjust 129 cases had been adjudicated, as at August 2011, involving terminations/dismissals for the use and abuse of Social Networking sites inside and outside of the workplace by employees. The first CCMA case - Sedick & another / Krisray (Pty) Ltd (CCMA case no. WECT13321-10 dated 21/10/2010 (unreported)involved two employee’s who posted caustic comments about the employer on their facebook pages. One of the employees, Sedick, (for reasons only be known to her) invited the MD’s daughter (who also worked at the company) to “friend” her. The MD’s daughter accepted the invitation only to find the less than flattering commentary regarding her father’s company posted on the walls of Sedick and two other employees. The employees were called to a disciplinary hearing and two of them were dismissed. The matter was referred to the CCMA as an unfair dismissal but the Commissioner found the dismissal to be substantively and procedurally fair. I will be canvassing the numerous defences raised by the employees in this case and the merits of each of these defences in another post The second case came to my attention through a friend (not a cyber friend). The case involved the dismissal of a pregnant employee who severely badmouthed her boss to her ‘friends” on facebook. The boss apparently had it coming to him for his disdainful comments to the employee regarding her pregnancy. The employee’s hate comments, which she apparently only made visible to a closed group of “ friends” on facebook, using her privacy settings, came to the knowledge of the boss. A disciplinary hearing was convened which resulted in the employee’s dismissal. The employee challenged the fairness of the dismissal on the basis that the evidence against her was inadmissible as the employer had no right to discipline her for what was a private communication to a closed circle of friends. The employee claimed that her posting on facebook was tantamount to her having a conversation with a few friends in her lounge at home. The decision on this matter is still awaited. What is your verdict? Given that CCMA Commissioners are not bound by the decisions of other Commissioners, it is foreseeable that CCMA awards on the issue of Social Media may be a source of confusion rather than enlightenment. But until the development of our law in the area of social media catches up with our rapidly evolving workplace needs we will have to make do with what we have. Going forward I will attempt to address the issues I have raised in this blog as well as many many more. I also hope to provide you with insight into international developments and best practice on social media in the workplace. So watch this space for more about the good, the bad and the ugly of social media @work. I look forward to hearing your thoughts. Vanessa

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some comments

There are currently 7 of them
  1. Anonymous 1 September 2011 at 8:15 pm permalink

    Thought provoking questions. Thx for great article, Vanessa

  2. Mike Saunders (@mikeasaunders) 2 September 2011 at 6:17 pm permalink

    Very thought provoking post. Thanks for sharing.

    In my opinion I believe that employees need to become more aware of the public nature of social networks and the harm that private conversations can cause on these platforms.

    At the end of the day people (whether on social networks or not) need to be accountable to their words and actions.

    • vanessahenry 2 September 2011 at 7:24 pm permalink

      I agree Mike. What is shocking is that statistics show that the majority of employees believe that what they say and do on their social sites has nothing to do with their employer. Worth a discussion in itself.

  3. Anonymous 4 September 2011 at 9:22 am permalink

    Does this mean my private “conversations” are no longer private? Is this not then invasions of my privacy and freedom of speech?
    on the other hand..
    there is also a legal term “crimen injuria”- which is the criminal act of unlawfully , intentionally and seriously impariring the dignity of another.

    just my two cents


    • vanessahenry 4 September 2011 at 11:16 pm permalink

      Hi Chris

      answering your question is not as simple as yes or no. In terms of the Regulation of the Interception of Communications Act (RICA), of 2002, an employer would be allowed to intercept your communications if one of the parties to the communication (yourself or the person you were speaking to) has given their permission to do so. also any party to a communication has the right to intercept that communication. In other words if i call you, i can record the converstion without your consent. Many employers are now requiring employees to give consent for interception in their contracts of employment when they start at the company. Other employers have implemented Telecommunications policies which incorporate these provisions and further provisions around the interception of email. Provided the employer complies with RICA a defence of breach of privacy or defamation won’t stand. Read section 5 and 6 of RICA for more information. These are the two sections which are most commonly relied on by employers. I will at some stage be discussing RICA in more detail in the Socail Media context.

      Thanks for your input. I appreciate it!

  4. chris 4 September 2011 at 9:24 am permalink

    as above