21 November 2011 by Cliffe Dekker Hofmeyr

Facebook firing: like it or not?

Facebook revolutionised social networking. It reconnects us with old friends and keeps us in touch with families in far-away foreign countries. It also unceremoniously shoved into the limelight the impact that after-hours conduct may have on an employment relationship.

The recent decision in Crisp v Apple Retail (UK Employment Tribunal award) highlights how the line between private and work life has become more blurry and fluid in the modern employment relationship. Apple Retail (UK) introduced a strict social media policy that prohibits any remarks by employees on the company or its products on any of the social media platforms. This rule was also emphasised during the induction of new employees. Despite this, the employee posted derogatory remarks about the company on his Facebook page. He reasoned that, as the posting was marked “private” and it could only be seen by his friends, it should fall outside the reach of his employer. Unfortunately for him, one of his “friends” then showed the posting to an iStore manager. Apple Retail took a dim view of this and dismissed the employee for misconduct.

The Employment Tribunal (UK statutory equivalent of our Commission for Conciliation, Mediation and Arbitration) upheld the dismissal. The Tribunal reasoned that the employee’s posting could still be copied and forwarded by those friends who had access to his Facebook wall. The employee could thus not control or prohibit the onward distribution of the disparaging remarks. The Tribunal also took into account the unique business of Apple and accepted that it is largely dependent on its reputation in the marketplace. This commercial standing could be damaged by remarks like those made by the employee.

The finding by the Tribunal echoes comparable awards made by the CCMA. Our law similarly recognises the right of an employer to take action against an employee where the employee’s private actions impact on the employment relationship. By the same token that an employer could dismiss an employee for assaulting his manager after hours, the employer may discipline an employee that causes harm to the company by making unsavoury remarks about the company, its products, service or staff on social media networks. Employees enjoy no special protection against action taken against them where they rant about their managers merely because the comment was made on Facebook, Twitter or LinkedIn rather than during the weekly office meeting. The test used to establish whether the employer may take action is whether the conduct hampers the ongoing relationship with their employer.

Where does this leave employers and employees in South Africa? Do we all delete our Facebook profiles, close our Twitter accounts and revert to communicating with friends by writing messages in secret code on torn A4-exercise book pages, like we did at school? Thankfully, we need not dump our iPads en masse or immediately arrange a march to protest the limitation placed on our right of freedom of speech. We can manage the risks of online communication going awry by keeping simple guidelines in mind.

Employers aiming to shed light on the dawn of social networking in the workplace should ensure that their employees appreciate the bounds of acceptable online conduct. A clear social media policy should be introduced and communicated to all staff, advising what employees may not communicate to third parties. In some instances it would be impractical to prevent employees from making any reference to their workplace or employer online. Some companies, for instance, actively use social media as an integral marketing tool. This would become a blunt weapon if employees are not allowed to make reference to the organisation or its products or services. However, there should be no business who will gladly accept that employees can insult their colleagues or employer. The relationship between a manager and sub-ordinate can suffer the same breakdown where the subordinate insults the manager online as if the insult took place in the workplace itself.

Employees seeking to traverse the minefield of social media misconduct should appreciate that no comment made online can ever be considered to be totally private. Like email communication, employees should blog or post work-related comment on social networks only if they are comfortable that it can be disseminated to a larger audience. “Private” stands relation to social media as “ethics” in relation to politicians.

Employees should refrain from making any negative comment in relation to their colleagues, clients or employer. When it comes to blogging, the golden rule is that you should not post if you do not want to see your comment in the newspapers tomorrow.

Johan Botes

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