Online social media, like Facebook and Twitter, may have come to enhance freedom of expression for ordinary citizens but the space is also proving to be slippery for professionals who carry names of their employees into social media. A statement issued by legal firm Werksmans Attorneys is making highly useful observations.
The statement says 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,” says Jacques van Wyk, director in the Employment practice of Werksmans Attorneys. “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,” says Van Wyk.
“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,” he says. “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 the Basic Conditions of Employment Act entrenches an employee’s constitutional right to freedom of expression when it comes to the identity of his or her employer.
“The act says that every employee has the right to discuss his or her conditions of employment with fellow employees, the employer or any other person,” says Van Wyk. “This right includes the right to identify the employer. Hence, it seems that disclosing your employer’s details on social media sites will fall within the scope of discussing your terms and conditions of employment with ‘any person’.”
This means an employer may not prohibit an employee from disclosing the employer’s identity, nor may the employer discipline an employee for doing so.
“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,” Van Wyk says.
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 a social media site can attempt to make this part of the employment agreement with the employee,” he says. “Yet, 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, Van Wyk recommends that employees be warned against making disciplinable 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 a 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 name of employer appeared on a pornographic or dating site, especially if the employer is openly opposed to such sites”.
“An employer may be well advised to send a notice to its employees in terms of its disciplinary code and procedure in this regard,” he says. “The purpose would be to warn employees that should they voluntarily disclose the employer’s identity on a social media site and make any comment that could be interpreted as harming the employer’s reputation, they will be subject to disciplinary action.”
Van Wyk adds that some employees may fail to appreciate that social media is increasingly part of the mainstream media and that for all practical purposes, they are communicating with a potentially unknown audience.
“For these reasons, employers should strongly suggest that employees remove any reference to the employer’s identity from their social media profiles,” he advises. “Employees should also adjust their privacy settings to limit publication of all information in the public domain.”