18 October 2011

Facebook - post at your own peril

Employees should know by now that posting derogatory remarks about their employer, and particularly their superiors, on social networking sites, is more likely than not going to end badly for them as far as their employment is concerned.

The case of Sedick and another / Kris Ray (Pty) Ltd (201132 ILJ 752 (CCMA) serves as yet another example. The applicant employees, respectively the respondent employer's operations manager and bookkeeper were dismissed for "bringing the employer's name into disrepute in the public domain."

The disciplinary proceedings arose from messages posted on the operations manager's "Facebook wall" on which the three employees made derogatory comments about the owner and members of his family employed by the company. The third employee was charged with the same offence but was given a final written warning. During the disciplinary hearing and subsequent arbitration proceedings, the employees claimed that their comments had not brought the employers name into disrepute because neither the company nor the people referred to had been specifically named. They also raised the dispute that their own privacy had been breached by another employee who had accessed their pages on Facebook.

In his finding, the Commissioner noted that the ever increasing access to and use of the internet is both a blessing and a curse to businesses worldwide, with the advent of social networking sites such as Facebook being particularly so. Apart from the problem of employees accessing these sites during working hours, using employer resources and so causing considerable losses to industry, there is the added problem of the use to which these sites are put. This dispute was a case in point.

Referring to the Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002, the Commissioner pointed out that in terms of section 4(1), "any person may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence."

Facebook, like the internet, is in the public domain. Unrestricted access is at a general level only. The members may exercise options to restrict access to their personal pages and the content of those pages.

In this instance, the two employees had not invoked privacy settings that prevented general members of the public from accessing their Facebook wall. A manager had obtained unrestricted access to one of the employee's pages when setting up her own Facebook page. This being the case, the employees' pages remained wholly in the public domain and the employee was free to access them. The admissibility of the employees' evidence was accordingly not an issue.

The Commissioner then considered whether it had been possible to identify the people referred to when they had not been specifically named. He found that former and current employees who happened to access the pages would have had little difficulty identifying the people referred to in the relevant posts. This meant that two senior employees had made derogatory comments in public about the company and some of its managers or their relatives. While some of the comments may have been no more than caustic, others undoubtedly had the potential of embarrassing the employer's management and tarnishing the company's reputation, so there was valid reason to dismiss the employees.

Turning to whether discipline had been applied inconsistently, the Commissioner noted that the employee who had not been dismissed held a relatively junior position and had been inadvertently drawn into the Facebook conversations by her two superiors. This constituted a valid basis for imposing a lesser sanction in her case.

Gavin Stansfield

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