A blog post

Facebook and egg on an employer’s face

Posted on the 02 July, 2012 at 9:51 am Written by in Social Media

Not every comment made by an employee regarding their employment or their workplace, using social networks, amounts to an attack and justifies dismissal. The case of Mahoro V Indube Staffing Solutions clearly .illustrates this point. In a nutshell In this case the employee made comments on Facebook which were addressed to an unknown recipient. Certain employees in the workplace assumed that the comments made related to or referred to them. Based on this assumption certain employees lodged a grievance against Mahoro. Mahoro was subsequently dismissed as she refused to attend the resulting grievance proceedings. In essence the commissioner found that there was no reasonable connection between Mahoro’s comments on Facebook and the workplace. The facts Mahoro refused to attend the grievance hearing which resulted, on the basis that her comments were not directed at anyone in the workplace and were her private personal communications. Mahoro’s supervisor then summoned Mahoro to a disciplinary hearing for insubordination relating to her refusal to attend the grievance hearing and for sewing disharmony in the workplace. Mahoro was found guilty at the disciplinary hearing and was dismissed. In the CCMA it was established that there was no evidence to support the allegation that Mahoro’s Facebook comments had sewn disharmony in the workplace. To the extent that employee’s who worked with Mahoro were unhappy, this was a result of their opinion/assumption that the comments on Facebook referred to them. Furthermore, the commissioner found that Mahoro’s refusal to attend the grievance hearing was justified, given that an HR representative of the company had given Mahoro the choice of either attending the hearing or reducing her reasons for not attending the grievance hearing to writing. Mahoro opted for the latter. Against this background Mahoro’s manager’s instruction that she attend the grievance was held to be unreasonable. Mahoro had no obligation to obey the instruction to attend the grievance hearing and so there was no substantive basis for her dismissal on the charges. The award Mahoro was awarded 4 months remuneration by the commissioner. Lessons The Mahoro case is clearly a case with a twist but brings home the following important lessons:
  • If an employer alleges that an employee’s Facebook communications have caused damage, disharmony or prejudice to the company, then the company must be able to establish a clear nexus/connection between the alleged damage, disharmony or prejudice and the offending Facebook communications;
  • In the CCMA, the employer bears the onus of proof. So, it is critical that employers understand the basic principles of evidence as applied in disciplinary hearings and CCMA cases. Opinion evidence is of no value in proving a case, unless the opinion comes from an expert in the field to which the evidence relates. Having a case is one thing, proving a case is another.
  • In this matter the HR representative of the company had given the employee an option to attend the grievance hearing or to alternatively provide written submissions for the grievance chairperson and not attend. The employee opted for the latter option and prepared written submissions. Despite this agreement between the employee and HR, the employee’s supervisor chose to discipline her for not attending the grievance. The commissioner dealt at length with the doctrine of Pre-emption (in layman’s language the doctrine of “you can’t have your cake and eat it” In her award. the commissioner had the following to say:
  “The doctrine of pre-emption was pronounced by the court in Hatchway v More & Deas 1912 AD 242 as follows: “. . . the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another or as it is commonly expressed to blow hot and cold, to approbate and reprobate. This doctrine was applied by the Labour Appeal Courtin National Union of Mine Workers of South Africa v Fast Freeze (1992) 13 ILJ 963 (LAC) as follows: ‘‘If a party to a judgment acquiesces therein, either expressly or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be pre-empted, i.e. he cannot thereafter change his mind and note an appeal. Pre-emption is an example of the well-known principle that one may not approbate and reprobate, or to use the colloquial expression, blow hot and cold. Or have one’s cake and eat it.”  
  • Don’t become a victim of social media paranoia. It is not possible to monitor all the online activities of employee’s. Foster an environment of trust with regards to the use of social media by putting clear guidelines in place for employees, with regard to their online communications. Social media has far more advantages to offer in a workplace than disadvantages. It also offers different and vibrant opportunities to engage employees and attract talent. Employers are shooting themselves in the foot by not allowing employees access to social media sites and harnessing the power, influence and impact that these sites have on offer. Is your workplace ready for today and tomorrow? If not there is no time like the present to get moving!

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