In terms of the Labour Relations Act 66 of 1995 (LRA) a dismissal is unfair if an employer fails to provide a fair reason for the dismissal or if the dismissal did not follow a fair procedure.
In establishing whether there are fair reasons for dismissing an employee for misconduct, the following can be considered:
- did the employee contravene a rule or standard regulating conduct in the workplace;
- if the rule or standard was contravened, was the rule a valid or reasonable rule or standard;
- was the employee aware, or should reasonably be expected to have been aware of the rule or standard;
- was the rule consistently applied by the employer; and
- is dismissal an appropriate sanction for a contravention of the rule or standard.
Accordingly, should the question be whether a post or message by an employee on social media or even a WhatsApp group constitutes grounds for dismissal, these factors will need to be considered.
In a recent CCMA arbitration, the CCMA had to decide whether an employee dismissed for a WhatsApp group message was fair or not. In this case, the employee, a senior employee of a security company working at a client of the company, posted a message on a WhatsApp group of the client essentially advocating employees not to be vaccinated against COVID-19. The client company had taken a decision to encourage its employees to get vaccinated and incentivize employees that did. The dismissed employee took issue with this incentive but was informed by his employer that they, as a contracted security company to the client, were not involved in the policies of the client and accordingly instructed the employee to keep his opinions to himself. Despite these instructions from the employer the employee proceeded to post an article on the client’s WhatsApp group which included members of senior management of the client, which article aimed to discourage employees from being forced by their employers to be vaccinated.
The employer dismissed the employee due to this post and the employee referred the matter to the CCMA for arbitration. The CCMA in applying the above considerations, found that:
- Although the issue of vaccination is controversial, the client company was not imposing mandatory vaccinations, but merely incentivizing employees to consider it.
- The employee, despite protesting that he was merely sharing information, clearly aligned himself with the article.
- The WhatsApp group had not been established for the purpose that the employee used it for and he was aware thereof.
- Although there was no specific rule about not posting on the group, it was reasonable that an employer could not be expected to publish a rule for every possible transgression. In this case, the employer had warned the employee not to post as this could damage the relationship with the client.
- The employee had overstepped his boundaries as it was not his place to warn the client or their employees about the client’s policies.
- The actions of the employee brought the employer into disrepute with the client, who was on the verge of terminating the security contract with the employer
Accordingly, the CCMA held that given the circumstances, the dismissal of the employee was an appropriate sanction.
What can be taken from this is that social media and group information sharing platforms like WhatsApp do not live outside the normal responsibility of an employee to have a duty of good faith towards their employer. Employees should therefore take great care when posting and consider whether there could be any breach of this duty or reputational damage to their employer whenever they use such platforms or post information. It does not mean that an employee can be fired for anything, but careful consideration is definitely advisable.
From an employer perspective, it is also recommended to formally regulate what the employer’s policies regarding social media and group communications are and so ensure employees are aware of these boundaries and can so better abide by them.
Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).
