A blog post

CCMA award on 2nd South African dismissal for use of Social Media

Posted on the 01 November, 2011 at 1:14 pm Written by in Social Media

I recently managed to view the arbitration award given in the second case to be adjudicated by the CCMA, concerning the alleged unfair dismissal of an Employee for comments made, concerning the Employer, on a social networking site. Ten chances to guess which site….. Facebook of course! Given that the award has not yet been reported I am, at this point in time, not at liberty to disclose the names of the parties concerned. Suffice it to state that the Employer party is an upmarket ladies fashion retailer. Further details follow.... Background to the case The Employee commenced employment in July 2010. She was dismissed from the Employer in April 2011 pursuant to a disciplinary and appeal hearing. The matter was thereafter referred to the CCMA on the basis that the dismissal was substantively unfair. In particular that the sanction of dismissal was too harsh. The Employee found out that she was pregnant with twins in the later part of 2010.  In early November the Employee miscarried one of the fetuses and was emotionally distressed. It is the Employee’s version that the Employer was unsupportive during her difficult pregnancy, generally treated her like a dog and discriminated against her. The Employee “snapped” when the Employer allegedly told her that she did not care about the miscarriage. At this point the Employee started to post comments regarding her Employer on her Facebook wall. And therewith lays the rub.  The first comment read “Never cried so much in my life never work for a family owned company”. The Employee’s husband responded to her comments as well as other “friends”. On 19 January 2011 the Employee wrote: “OK but family run business and don’t care if I have a difficult pregnancy. I need to do my work and not take any time off. This was followed by other comments but notably on the evening of 20 January 2011, the Employee wrote –“Just work for such a bitch, basically she has no sympathy for the miscarriage or difficult pregnancy, as long as my work gets done. Started crying at work”. This comment by the Employee caused a “friend” to comment – “What! And you are only calling her a bitch…You’re being too nice………….Karma is a bitch. Wanna Boycott some of there (sic) stores….It’ll be fun. Further comments regarding the alleged heartlessness of the Employer followed. The Employee used the Employer’s laptop to create the offending comments even though this was done at home. The Charges The Employer came to know of the Employee’s disparaging comments on Facebook (via another Employee who was a “friend” of the Employee, as I understand). The Employer investigated the matter and was able to view the comments made by the Employee on Facebook. The Employee was charged for bringing the company’s name into disrepute. Defenses raised by the Employee in the matter The Employee’s defense in the disciplinary hearing centered mainly on three (not very convincing I might add) arguments. Firstly she contended that her privacy settings on her Facebook page were applied such as to allow only friends and family access. Her contention being that the Employer had violated her right to privacy by viewing her Facebook page which was not intended for the broader public. The Employee’s second defense was that there was no rule in the company regarding the use of Facebook. The implication being that if the rule does not exist how could she be punished for breaking it. Thirdly, the Employee claimed that she was not responsible for the comments made by persons visiting her wall.  At the arbitration the thrust of the Employee’s case was that the sanction of dismissal was too harsh and that corrective action short of dismissal should have been applied. The evidence in the case showed that the Employer had managed to access the Employee’s Facebook page and view the offending comments by simply viewing her Facebook profile.  No security settings limiting access to the offending comments were evident. On this basis the Employee’s first defense failed. On the second defense the Employer confirmed that the company had no rules against the use of Facebook either during or outside working hours. It would appear that the Employee misunderstood that she was being disciplined for bringing the Employers name into disrepute and not for using a company laptop to access Facebook. Commonsense and the common-law dictate that an Employee owes an Employer a duty of good faith. This duty extends to not causing disrepute to the Employers name. The Employee’s contention that she was not responsible for comments made by persons visiting her Facebook page was also found unconvincing by the chairperson of the hearing. Given the nature of the Employee’s comments about her Employer, any reasonable person, in the Employee’s position, would have or should have foreseen the possibility of the comments eliciting a negative reaction toward the Employer. The CCMA Award In short, the Commissioner found that based on the evidence placed before the CCMA, the Employee had brought the Employer’s name into disrepute and that the sanction of dismissal was an appropriate sanction in the circumstances of the case. In confirming the appropriateness of the sanction of dismissal, the potential impact of the Employee’s comments (the threat of a boycott) acted as a significant aggravating factor.  The Commissioner also noted that the Employee had used an inappropriate vehicle to vent her frustrations. The Employee should have used the Employer’s grievance process. The Commissioner furthermore did not attach much weight to the Employee’s claim that she had written the comments at a time that she was very hormonal. Lessons from the award
  • Social media is not private even if an Employee applies “privacy settings”. To quote Jon Hyman (my favourite American employment law blogger) - social media and privacy cannot coexist”.
  • Employees need to realize that they are accountable for what they post AND for the responses that their posts may elicit. Even on their own time what Employees say and do online can have an impact on the workplace. Forgive me, but to use the words of Jon Hyman yet again - “Think before you click”;
  • Employers should have guidelines or a policy for Employees around what is and what is not acceptable when using social media to discuss or comment on work related issues;
  • Employees should be made aware of the potential dangers of using social media to “blow off steam” about work related issues. Employers must nurture a culture where use of the grievance process is encouraged and taken seriously;
  • An Employee cannot hide behind the “no rule” defense” when the rule is a matter of common sense or the law. Furthermore for this defense to succeed the “no rule” defense must apply directly to the charge against the Employee. In this case bringing the Employers name into disrepute;
  • The importance of simple yet accurate charge drafting. It should be noted that had the Employer charged the Employee with using the company laptop to access social networking sites, it would likely have lost the case, given that the Employer had no rule on this issue.
Social Law Brain Teaser. 1. In Labour Law dismissal is tantamount to the death penalty and should be imposed only in cases where the Employee’s conduct renders the continuation of the employment relationship intolerable. In your view, did the Employee’s actions render the relationship intolerable and was dismissal an appropriate sanction? 2. If we were to presume that the Employer in the above case had gained access to the dismissed Employee’s Facebook wall by misrepresenting itself, through another Employee, as a “friend”, would the CCMA have reached the same conclusion in the matter? I look forward to hearing from you soon and hope to meet some of you at my Social Media Workshop on 15 November 2011!

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some comments

There are currently 3 of them
  1. Pat 16 August 2012 at 12:51 am permalink

    facebook comments are for facebook friends only or else the whole world should be comunicating with each other.Its not the duty of non friends to invade others privacy although FB is a social networking site and if you take offence of the comments then you guilty of the crime.The employee vented her frustration but no names mentioned so whats the big deal.

  2. Pat 16 August 2012 at 12:56 am permalink

    This is also a good way of exposing companies that treat people with disrespect,only the aggrieved person knows how they feel..what if the employee committed suicide bcos exploitation,will the company take responsibility.

  3. Pat 16 August 2012 at 1:02 am permalink

    I know a company thats a service provider and they constantly comment on FB of how good they services are and offer all sorts of competitions etc.but when infact they are misleading and frauding the public..this is first hand info.So would it be wrong to counter act and advise the public on FB of these activities.