2 March 2010

From Facebook rant to facing dismissal

 "I'd really love to meet the guy I am supposed to be, I'd hire him in a second." - Lee Lacocca.

Does an employer have the right to take disciplinary action against an employee for creating a racist Facebook page?

The question of an employer's legal position concerning disciplinary action that should and can be taken against employees who publicly make racist remarks has once again surfaced following recent media reports on a racist Facebook page.

Its creator, Pieter Blaauw, was reported to have apologised, but internet and Facebook users were left enraged until Facebook shut the page down.

The Facebook incident follows on the heels of an incident where, at a staff function at Sun City, an employee allegedly played a derogatory song in which racist remarks were made against former Presidents Nelson Mandela and Thabo Mbeki. The employee faced disciplinary action at an internal enquiry, but was reportedly acquitted of the charges.

One would expect that such exhibitions of blatant racism should result in swift and harsh disciplinary action against the individuals in their capacity as employees. While employers might appreciate their right to take action against the misconduct of their employees at staff functions, many employers are less certain about their legal position where employees misbehave outside the work environment.

In creating a racist website in the public domain, the actions of the employee may negatively affect the business of his employer or the working relationship between him and his employer or colleagues.

The law holds that employees may not act in a manner designed to destroy harmonious working relations with their employer or colleagues (Erasmus v BB Bread Ltd (1987) 8 ILJ 537 (IC). They owe a duty of good faith to their employers which duty includes the obligation to further their employer's business interests (CSIR v Fijen (1996) 17 ILJ 19 (A); Cyberscene Ltd v i-Kiosk Internet and Information (Pty) Ltd 2000 (3) SA 806 (C)).

Can it reasonably be expected of any co-worker to have a harmonious working relationship with a colleague who expresses blatantly crude racist views?

Similarly, can an employer feel justifiably disgruntled when clients take away their business because of an employee's public rants? A client could, after all, hardly be blamed for being unwilling to risk exposure to similar treatment when dealing with a business owner whose employee behaves in such a fashion in his private capacity.

An employer might also face public pressure to take action against the employee, as COSATU showed when the trade union federation marched to Sun City to demand disciplinary action be taken against the employee who allegedly played the racist song.

Employees may face dismissal where their private action negatively impacts on the relationship with their employer.

So even where the Facebook rant is not directed at the employer, employees should take great care in behaving in the public eye in a manner that will not be seen to destroy harmonious working relationships with their employer or colleagues. Employees who use social networking sites such as Facebook or Twitter as a forum for expressing their views should not say anything on those platforms that they would hesitate to say at the monthly staff meeting.

Johan Botes, Director, Employment

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