In the matter of Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA) (the “Fredericks” matter), an employee was dismissed based on derogatory posts she made about her employer on Facebook regarding a grievance she had. Her defence was that “the company was supposed to use corrective measures other than to dismiss her” and that her “constitutional right to privacy had been infringed.” Let’s deal with these two defences separately.
1. Constitutional right to privacy
This was dealt with extensively in the matter of Sedick v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA). In this matter, as well as the Fredericks matter, it was held that Facebook is considered to be in the public domain. Everything that is posted is there for the world to see. Further, the applicants in both of these matters had “open profiles” in the sense that they were unrestricted in terms of their privacy settings. However, make no mistake – just because your Facebook profile is restricted, does not mean it is out of the public domain. It was therefore held that the applicant’s right to privacy had not been infringed.
2. Other corrective measures
Item 7 of Schedule 8 of the Labour Relations Act, Code of Good Practice, provides for matters to consider when determining a dismissal. One of the considerations to be taken into account is whether or not dismissal was an appropriate sanction of the rule. Although there was no specific rule or provision regarding Facebook usage in the employee contract or company policy, in the Fredericks matter, the employee still published derogatory statements about the company and her employer. The CCMA therefore held as follows:
“Her [the employee] actions were not justifiable and she used the wrong platform to address her grievance, therefore dismissal was fair.”
Although an employee can be dismissed based on their social media posts, the correct procedure will still need to be followed. We recommend that a disciplinary hearing be mandatory. A dismissal can be found to be not only substantively unfair, but also procedurally unfair, if the correct procedure is not adhered to.
One thing is for certain… be careful what you post on social media. Ask yourself the question: “would I post this comment on a billboard next to the N1 highway?”
For any related issues, contact Mark Christodoulou: markc@vdt.co.za or 012 – 452 1300.
