Nov 29,2012 / News / Legal Brief

The recent dismissal of a staff member at a daily newspaper in Johannesburg for making inappropriate comments on Twitter about the publication, poses new dilemmas for South African employers.

The question is whether employers can forbid their employees from disclosing their company’s identity on Facebook, Twitter or other social media profiles. Moreover, is it within the employer’s rights to discipline an employee who refuses to comply?

In both instances, the answer is no. Disciplinary action can only be taken if the employee makes inappropriate online comments about the employer which could potentially damage the reputation of the company. Recently, there have been a number of cases before the Commission for Conciliation, Mediation and Arbitration (CCMA) in which employees were dismissed for publishing negative comments about their employers on social media sites.

In some cases, employees were even dismissed for making comments not directed at their employer, but which still amounted to disciplinary offences such as racial slurs. Some of these dismissals were found to be fair as the employees concerned had brought the employer’s name into disrepute by making such comments.

Employees’ rights to freedom of expression

For the rest, any attempt to prevent employees from mentioning their employer’s name on their social media profiles or social media sites could be seen as interfering with their rights of freedom of expression.

This is because South African employment legislation recognises an employee’s constitutional right to freedom of expression when it comes to the identity of his or her employer.

Every employee has the right to identify his or her employer and implies that an employer may not prohibit an employee from disclosing the employer’s identity, nor may the employer discipline an employee for doing so.

Furthermore, an employer may also not favour, or even promise to favour, an employee in exchange for not exercising their right to freedom of speech about the employer’s identity.

This however does not imply that employers’ hands are completely tied.

AMENDING THE EMPLOYMENT CONTRACT

Employers who do not wish employees to name them on social media sites can attempt to make this part of the employment agreement with the employee. The employee must agree to this and employers should not try to unilaterally amend the terms and conditions of an existing employment agreement.

Where employment contracts do not require employees to refrain from identifying their employer on social media sites, it is recommended that employees be warned against making inappropriate comments in the public domain or, by association, bringing the employer’s name and reputation in to disrepute. For example, an employee’s profile on Facebook may not be harmful to the name and reputation of his or her employer but that might not be the case if his / her profile (and the name of the employer) appeared on a pornographic site, especially if the employer is openly opposed to such sites.

Employers are advised to send a notice to employees in terms of its disciplinary code and procedure in this regard. The purpose would be to warn employees that should they voluntarily disclose the employer’s identity on a social media site and in doing so also make any comment that could be interpreted as harming the reputation of the employer, they may be subject to disciplinary action.

CONCLUSION

Social media is increasingly becoming part of the mainstream media and employees need to be aware that they are communicating with a potentially unknown audience.

Employees should also be advised to adjust their privacy settings to limit the publication of information in the public domain.