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Unemployment – the cost of misusing social networking sites

Posted on the 22 September, 2011 at 9:21 pm Written by in Social Media

Unemployment – the cost of mFired for social media misuseisusing social networking sites inside and outside the workplace Can an employer discipline employees for conduct outside of working hours and unrelated to the workplace? Many employees claim that it is none of the employers business. While employers claim that it is their business if the conduct effects or impacts the workplace. What is the position in law and let’s look at this proposition in the social media context. The Scenario A manager at Company ABC has a relationship with his personal assistant for approximately 10 months. The relationship falls into disrepair and the personal assistant ends it. The manager is unhappy about the breakup and continues to try amending the relationship. His efforts are to no avail, until December when the company has its Christmas function at a restaurant in a Johannesburg Northern Suburbs restaurant. Filled with good spirits the two lovebirds go to the manager’s car to seal their reconciliation. During the reconciliation the personal assistant decides that she does not want to continue. She tries to climb out of the car. The manager then makes every attempt to stop her, including holding her tightly by the wrists and pegging her down to the bonnet. The personal assistant lays a grievance of sexual harassment against the manager on the Monday which then leads to a disciplinary hearing. The manager denies harassing the personal assistant and claims that what transpired in the car park had nothing to do with the company. The law Poor fool! Few employees understand that their actions outside of the workplace may well result in disciplinary action. The test generally applied is whether the employee’s conduct adversely affected the employment relationship. The test covers situations where an employee’s conduct negatively affects his ability to work with fellow employees. Not just the boss. If an employee’s conduct negatively affects the work environment or brings the employer’s name into disrepute, it matters not that the conduct happened off the clock or outside of the company’s premises! The conduct also does not have to be related to breaching a specific term of the employee’s contract of employment for disciplinary action by the employer to be justified. See Malan v Bulbring No and Others (2004) 25 ILJ 1737 (LC). Social Media Statistics show that a majority of employees believe that what they post in their personal social media space has nothing to do with their employer, while the majority of employers believe that they have a right to know what employees are writing if it pertains to the company or the workplace. The two parties are miles apart in terms of their expectations of privacy when it comes to social media - a problem in itself. Employees need to be aware that social media by its very nature is not private, regardless of the use of privacy settings. To explain this point, it is easier to take an example that does not use social media as the arena for the offence. For example, would employees claim that posting a derogatory article about the company, or publishing lewd photographs dedicated to a fellow employee, in a small local newspaper, is private and cannot be used against them as is was only intended for the local community. I think not. The use of privacy settings in a social site merely means that a post can only be seen by a select number of people/friends. These settings do not and cannot guarantee that “friends” won’t pass on the information. Employees need to understand that once it’s out there its fair game. The privacy defence, or any other human rights defence for that matter, is not likely to provide immunity against the consequences and affects of a damaging or derogatory post. The lesson The employment relationship is in many ways similar to a marriage. The parties in both situations owe each other a duty of good faith.  A spouse who bad mouths his partner to a few close friends, for whatever reason, may never have to account for his conduct provided the other spouse remains ignorant of the comments. But this is a big gamble. Similarly, employees who use social media sites (with or without using privacy settings) to scathe their employer or harass fellow employees must understand that that they are gambling with their jobs. An activity not recommended for those who cannot afford the high cost of unemployment. Do you think that employers should be prohibited from using information posted on social media sites against employees?

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