Recent news headlines have featured many cases where employees have been dismissed as a result of comments or posts on social media that prove to be not in line with the standards of the employer they work for. 

According to South African Labour Law, before an employee can be dismissed substantive and procedural requirements need to have been fulfilled in order to for the dismissal to be fair. One has to, therefore, explore whether misconduct in the form of posts via social media could pose as a big enough substantive issue when deciding whether an employee should be dismissed. 

As we know already, the law is underdeveloped when it comes to social media but with the rise in its usage the CCMA has had to address this form of misconduct and decide whether it warranted dismissal. Two cases worth mentioning are:
• Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA); and
• Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA):
Both cases concerned posts by employees on Facebook that the Employer decided brought the company’s name into disrepute. Putting a company’s reputation on the line would certainly be reason enough for dismissal, however, the issue at hand in these particular cases and in many of the cases surrounding social media is how the information was obtained and whether privacy was infringed upon in obtaining such, and also whether the public would know who the subject matter of the posts are. 

The Act that addresses accessing information posted in these cases is the Interception of Communications and Provision of Communication-related Information Act 70 of 2002 which states that “any person . . . may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence” In these cases the employees profiles were public, and anyone had access to their posts making the posts admissible evidence. The question regarding how identifiable the people/company mentioned in the post proved to be was addressed by looking at the comments where it was found that fellow employees would have no problem doing so. Dismissals in both these cases was found to be fair.

It is important for Employers to make sure that their rules and standards regarding questionable social media posts are made clear to all employees, and that their Employees acknowledge the risks involved when contravening a rule in both the real and virtual world. 

In conclusion, one has to remember that our posts on social media are what others consider a reflection of who we want to be portrayed as, and can have serious consequences when it comes to your place of employment. What you publish is viewable by both current and potential employers and therefore should be done so carefully.

Always think before you post!