Have you ever wondered if a controversial social media post could be grounds to get an employee fired? Careless use of social media has been in the forefront of the news in the last few years. Politicians, boisterous teenagers and disgruntled employees have all not been spared as a consequence of their reckless social media usage. It does not matter what particular social media forum has been used, the point is that the consequences of their actions have been more far-reaching than they ever could have imagined in the second that they clicked "post".
Why could it be a problem?
Employees need to be careful about what they post on social media, as offensive, inflammatory, or discriminatory comments could potentially reflect badly on the company or be in contravention of the company’s social media policies leading to a dismissal. When posting online, employees need to keep in mind that they have an audience and are an ambassador for the brand they work for. By posting swear words, discriminatory posts or untasteful remarks, they run the risk of endangering the relationship with the employer and possibly costing the company business.
Can an employee be dismissed for a social media post?
Whether a dismissal will be warranted is based on the following two principles:
- The impact the misconduct had on the working relationship of the employer, employees or among employees; and
- Whether it was an action that caused the breakdown of trust of the working relationship
This can be measured on a number of criteria, for example:
- Severity of post
- Possible damage to the reputation of your company / brand
- Company’s social media policy
- Link between the employee’s conduct and the employment relationship
What about freedom of speech?
Freedom of speech is an enshrined right in the Bill of Rights. This right may, however, be limited in terms of section 36 of our Constitution. Some examples of limitation of this right:
- Advocacy of hatred will not be allowed
- To be measured against other rights like human dignity, freedom and equality
Posting in their personal capacity
Where a sufficient link can be established between the employee's conduct and their employer’s identity, the employer may be permitted to take disciplinary action.
Putting a disclaimer on their social media profiles stating that the views and/or opinions expressed by are not that of their employer does not exclude them from any form of liability for their malice or being charged with misconduct if the public can link the employer to the employee.
How can we help Employers?
- Create best practice policies to protect the organisation
- Assess current situations and advise strategies on the way forward
- Investigate any transgressions for disciplinary action
- Facilitate disciplinary processes
- Manage the company’s social media footprint
The information shared on this article/blog/vlog should be read and understood within the current legal framework of South Africa. It is meant purely for educational discussion and does not amount to legal advice. For specific legal advice, please consult a legal practitioner prior to application.