‘Keyboard Warrior’, a term normally used to describe a person who is not afraid to voice their opinions on social media platforms. The identity of the person is usually hidden, but not their opinions. Social media also acts as a community where one can find like-minded people who share a person’s opinions and values. The platforms also allow people to assume anonymous identities, staying perfectly safe behind their screens.
According to the Global Digital Report 2024, there are at least 26 million South Africans who use social media, who spend an average of 03:41 hours on different platforms. WhatsApp, followed by Facebook, TikTok and Instagram are the most visited platforms.
Most companies have some sort of policy on internet usage, specifically using company issued mobile devices. These policies may include the dissemination of information within the workplace, and warn against the sending offensive messages. The question then arises whether an employer may discipline an employee for comments made on their personal media platforms. Where an employee is reported to have made derogatory, offensive or harassing messages on social media, an employer may discipline them.
In Van Straaten vs Wehnche and Others ([2024] ZALCJHB 297), a former employee approached the Labour Court to review and set aside an arbitration award made by the CCMA. The employee alleged that he had been unfairly dismissed, and the dismissal was both procedurally and substantively unfair.
The employee had been charged with ‘You are accused of racism for directing offensive remarks towards a member of the public on Facebook. You were previously cautioned about the dangers of social media and disregarded management’s advice. In addition, you were bound by a clear social media Policy Code of Conduct. Your actions brought the employer’s name into disrepute.’ The incident that led to the charges arose from comments made by the employee in a thread posted by the Tshwane SPCA Facebook page. The employee posted a response to a person (Mr Singh) who he had never met and didn’t know. His response contained racist and xenophobic remarks. After the incident Mr. Singh traced the employee via LinkedIn and found the company he was employed by. Mr. Singh sent an email to the employer informing them about the incident. The employee was charged, found guilty and dismissed.
Similarly in Dagane v SSSBC and Others ([2018]ZALCJHB 114), the employee had made derogatory and racist remarks about a group of people on a Facebook page. He was charged, inter alia, for prejudicing the discipline and efficiency of the SAPS, contravening the SAPS Regulations, Code of Conduct and Code of Ethics by unfairly and openly discriminating against others on the basis of race; through blatantly racist remarks; by threatening the future safety and security of white persons; and by making uncalled for remarks on Facebook which amounted to hate speech. At the disciplinary hearing he was found guilty and dismissed. After being unsuccessful at arbitration the employee applied for a review of the award. The Labour Court agreed with the CCMA, and found that his dismissal had been fair.
The above cases have much in common. Both employees made their comments on their own social media pages. They were not at that time representing their respective companies. The comments were made using their own electronic devices, and not made during office hours. However, both employees were easily traceable by outsiders, who were able to contact their employers.
Interestingly, in Dagane and Van Straaten, the employer did not have a policy regarding social media in the workplace. In order to discipline them the employers relied on common law. In terms of common law, employees have a duty to protect the reputation of their employer. In addition, employees have a duty of good faith to their employers, which requires employees to not behave in a manner that is detrimental to their employer’s best interest. An employer is not prevented from taking disciplinary action against an employee, because there is no policy in place.
A popular argument against limitations on an employee’s social media, is their right to freedom of expression and right to privacy. This argument ignores the rest of Section 16 of the Constitution that limits freedom of speech from propaganda of war, incitement of imminent violence, and advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. Where an individual shares their personal information or opinion on a public platform, they unwittingly agree to that information being public. Therefore, a company may rely on an employee’s private and public postings/conduct on social media in taking disciplinary action.
It must be borne in mind that an employer’s limitation on an employee’s use of social media, is for the protection of the company’s reputation and internal work environment. Employers must strike a balance between respecting an employee’s rights to free expression and privacy, whilst also protecting their brand and maintaining a professional work environment.
It is crucial for businesses to have clear, well-communicated social media policies in place that outline expectations, the consequences of misconduct, and guidelines for responsible social media use. Without such policies, employers may struggle to effectively manage social media-related issues and defend their actions in cases of misconduct.
Let SEIFSA IR Assist You
At SEIFSA IR, we understand the complexities surrounding social media use in the workplace. We can help your company draft a comprehensive social media policy that aligns with your business goals, complies with legal requirements, and protects your brand. Whether you are looking to implement new policies or update existing ones, our team is here to provide expert guidance and support tailored to your needs.
Contact us today to ensure your company is equipped with a robust social media policy that supports both your employees’ rights and your organisation’s reputation.
