Written by Samantha Moodley

Facebook is an internet based social networking website with more than 500 million active users. Each facebook profile has a wall on which the user or their facebook friends can post comments. Depending on the privacy settings of the user, this wall may be viewable by not only their friends but by other facebook users. In addition, when a post is ‘liked’ or commented on by a friend, that post may then be viewed by that person’s friends. Facebook postings therefore fall within the public domain and are open to a wide audience.

Similarly, Twitter is another online social networking service. These twitter messages or ‘tweets’ are public and may be viewed by anyone, including unregistered users.

These are just two examples of a number of social media networking sites. Recently the impact or effect of these postings or tweets on the relationship between the user and their employer has come under the spotlight. Questions have arisen as to whether employers have the right to discipline employees over comments made over these sites. In answering this, it is important to bear in mind that when these comments are made over the internet via a social network, they cannot be deemed to be private.

The relationship between the user and their workplace comes into play when the comments impact or has the potential to impact on the reputation, values or ethics of the workplace. As long as the workplace of the employee is identified or is at the very least identifiable, this may give the employer grounds to take disciplinary action against the employee.

The unreported matter of Sedick & another / Krisray (Pty) Ltd, unreported, Case number WECT13321-10(CCMA) goes on to say as follows:
“The internet is a public domain and its content is, for the most part, open to anyone who has time and inclination to search it out. The principle is that, if employees wish their opinions to remain private, they should refrain from posting them on the internet.”

In the above matter, a senior employee had a Facebook page which was open to the public. She posted comments which were derogatory and insulting about her employer, who was the owner of the business as well as his family members who were also employed within the business, and facilitated similar comments from other employees and ex-employees. Although she didn’t mention any of them by name, their identities would have been obvious to anyone who visited her page. The employer’s daughter invited the aforementioned employee as a friend and at the same time accessed her wall. The daughter then discovered the comments that had been posted about her family by the employee.

Despite the fact that no names were mentioned, the arbitrator found that all of the identities of the people concerned were apparent to the people that visited the facebook page.

In the circumstances, the arbitrator found:-
• That the privacy provisions typically associated with private communications did not apply.
• The Regulation of Interception of Communication and Provision of Communication-related Information Act did not apply.
• The communications were derogatory, insulting and potentially damaging to the reputation and business of the employer, and
• The misconduct was compounded by the seniority of the employee who posted the facebook page.

It was adequate that the employer was able to show that the postings could result in potential damage to its reputation and standing. There was no requirement to show that there was an actual loss of business due to the postings. The dismissal of the employees was upheld.

In more recent incidents, Standard Bank’s Chris Hart has been taken to task over comments that he made on Twitter. He in no way indicated that this was in his capacity as a Standard Bank employee, however, the fact that he is identified as a Standard Bank employee was sufficient for them to take action. They immediately distanced themselves from his comments and instituted disciplinary action against him. Penny Sparrow, a former employee of Jawitz Properties, posted racist comments on Facebook causing her former employer to quickly react. They formally stated that she was no longer employed by them, however, as her status still reflected them as her employer, they stressed that her views in no way reflect their own. Ms Sparrow was also removed by the DA as a member. The DA’s Dianne Kohler Barnard was also disciplined last year for reposting a comment praising certain members of the apartheid government.

In the abovementioned instances, the users did not slander or defame their employers, however, the nature of their comments were such that it could harm the reputation of their employer. Postings on Facebook or other social networking sites by employees that could have a negative effect on the employment relationship, bring such actions within the employment relationship irrespective of whether or not these actions have been conducted within working hours or using the employer’s resources. Employees need to be mindful of the fact that their obligation to their employer does not only apply during working hours but these must be upheld at all times. The common law obligations include promoting the employer’s name and business, not making a profit at the employer’s resources and observing the appropriate standards of confidentiality concerning the employer’s business and the privacy of other employees. Employees must conduct themselves at all times in a proper manner which is not damaging or potentially damaging to the interests of the Company or they could find themselves facing disciplinary action.

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