We are all familiar with how the Arab spring was fanned by social media and how fast things can go “viral”. If one of your employees makes derogatory comments about you or your business on, say, Facebook, there is a strong possibility (obviously depending on the merits of the case – get proper advice before taking any action!) that labour courts and the CCMA (Commission for Conciliation, Mediation and Arbitration) will uphold your decision to dismiss the employee.
Globally, courts are coming to similar conclusions.
Employees: The dismissal danger
Employees often vent their frustrations on social media without realising the possible consequences – the danger is that you can irreparably damage relationships with your employer, leading to your dismissal. You could also find yourself facing a damages claim for defamation. Employees are entitled to privacy but if you post a comment which you have not sought to keep amongst your network of friends, then the information is in the public domain and your employer could use it against you. Posting comments on your Facebook wall, for example, can be used against you. Further, if you have a Facebook friend who happens to know your employer, then the friend might inform your employer of the content of the posting.
Employers: What you should do?
You should put in place a policy which makes clear what is and what is not acceptable. This policy should also allow you to monitor what your employees say about you in the social media (it will also assist you in complying with the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA)). In terms of the common law the employee has to act in good faith, show loyalty to the employer and not bring the employer into disrepute. The employee cannot argue there was no policy to stop them making, for example, derogatory comments about you or your business. If the employee has a grievance, they must take it up with the employer. Thus, it is sensible to have a grievance procedure or encourage staff to speak to you or their superiors if they have a gripe. You don’t want the hassle and bad publicity of being bad-mouthed in the social media – make sure your staff are aware of the consequences and that you have policies in place to swiftly deal with any contraventions. Finally, appoint one of your managers to monitor what staff are saying about you in the social media.
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