A blog post

The Implications of the BMW judgement for South African Labour law

Posted on the 10 October, 2011 at 1:30 pm Written by in Social Media

Summary I have attached a link to a recent BMW case where the dismissal of an employee was upheld. The employee posted derogatory comments on a social networking site. The case raised a number of questions for me with regards to how the matter would play out in the South African context and some of the possible defences that could (and will) be raised by employees in the South African workplace when it comes to disciplinary action taken in response to Social Media content. The U.S.A has experienced a surge in the number of cases related to defamation and discrimination with the emergence of a hyper-connected workforce and the same is likely to happen here. http://www.autoguide.com/auto-news/2011/10/bmw-dealership-wins-case-over-employee-fired-for-negative-facebook-comments.html The South African Context In South Africa we have little guidance, as yet, from our Court’s and the CCMA on decisions involving the use of Social Media in the workplace. Prevention is better than cure and I have hence advocated the drafting of social media policies and the training of employees to regulate the expectations of both employers and employees when it comes to the use of social content that impacts on or relates to the workplace. I have researched American case law on the issue of discipline and dismissal arising from the use of social media extensively. However, the crux of the majority of these cases is whether or not the employee’s activity could be construed as protected concerted activity, under the National Labour Relations Act. In several judgements the courts have classified “offending material” posted by an employee as “protected concerted activity”. This classification has on occasion been to my amazement and represents true legal acrobatics through South African legal spectacles! Protection against Discrimination in South Africa and more questions begging answers The concept of protected concerted activity is a concept foreign, to South African Law thusfar. I say thusfar, since our Basic Conditions of Employment Act (BCEA) at S78, provides protection against discrimination, and allows employees to discuss their terms and conditions of employment with anyone. It reads: 78. (1) Every employee has the right to— a) ……………………………………………………………………………….. b) discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person; I am wondering though if in the future we will see employee’s in the South African workplace, relying on S78 of the BCEA to defend comments made on a social networking site? Will South Africa also see a surge in discrimination referrals as employees claim that disciplinary action taken against them for posting content related to terms and conditions at work constitutes a violation of S78 of the BCEA? Will it be argued that sarcastic and profane comments relating to terms and conditions of employment at work, including the behaviour of superiors, fall within the protection of S78? Will we too see our judges doing legal acrobatics in deciding these novel issues? Would a post on my facebook wall to the effect that my boss from hell pays me less than the market average and refuses to give me a lunch hour be protected by S78? Please let me have your thoughts on the issue and let me know if there are any other defences you foresee as arising with regard to these issues.

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