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Bulletin

Can an employee be disciplined for comments made on social media outside of the workplace and not using the employer’s system and equipment?

Fasken
Reading Time 5 minute read
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Overview

The question of whether an employer can discipline an employee for comments made on social media is often linked to the employee using the employer’s system or equipment to access the social media platform. Employees often raise as a defence that they made the comments outside working hours and using their own devices. The Labour Court has made it clear that just because the employee uses his/her own device and makes the comments outside of working hours it is still possible for the employer to discipline the employee.  

The Labour Court dealt with this question in the unfair dismissal dispute between Ms Cantamessa and Edcon Limited. Ms Cantamessa had been dismissed for making racial slurs on her Facebook page.  She posted the following comment – 

“Watching Carte Blanch and listening to these f*cking stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president … President my f*cking ass!!  #zumamustfall This makes me crazy ass mad.” (sic)

She made these comments using her own device and while on annual leave. The comments also had nothing to do with her duties as an employee of Edcon.  However, her Facebook profile stated that she was employed by Edcon as a fashion buyer.  

Ms Cantamessa was charged with and dismissed for the following misconduct – 

“On the 20th of December 2015, you made an inappropriate racial comment on Facebook.  Such action placed the Company’s reputation at risk and had breached the employment trust relationship.”  

The Commissioner in the CCMA hearing found on the basis that the misconduct occurred outside the working environment and did not breach any of Edcon’s workplace policies and procedures that her dismissal was substantively unfair and awarded her 12 months remuneration. Edcon took it on review to the Labour Court. The Labour Court upheld the review and found the dismissal to be substantively fair.  It did so for the following reasons:  

The Court accepted that the general rule is that an employer has no right to discipline employees for conduct that is not work related which occurs after working hours and away from the workplace. The Court also accepted that none of Edcon’s disciplinary policies were applicable to Ms Cantamessa’s alleged misconduct.  

However, the Court went on to find that where misconduct does not fall within the express terms of a disciplinary code, such misconduct may still be of such a nature that the employer may nonetheless be entitled to discipline its employee. Likewise, the fact that the misconduct complained of occurred away from the workplace does not necessarily preclude the employer from disciplining the employee for such misconduct.  

The Court confirmed that a number of factors need to be considered in these circumstances such as the nature of the misconduct, the nature of the work performed by the employee, the employer’s size, the nature and size of the employer’s workforce, the position the employer occupies in the marketplace and its profile therein, the nature of the work or services performed by the employer, the relationship between the employee and the victim, the impact of the misconduct on the workforce as a whole, as well as the relationship between the employer and the employee and the capacity for the employee to perform her job.  Finally, what needs to be determined is whether the conduct had the effect of destroying or seriously damaging the relationship of employer and employee between the parties.  

Considering these factors, and in particular the conduct of Ms Cantamessa in making racial slurs, the Court found that it made no difference that the misconduct was not set out in a policy. The Code of Good Practice on Dismissal provides that employees may be disciplined if they break rules regulating conduct in or of relevance to the workplace. The main principle is to determine the connection between the misconduct and the employer’s business.  

The Court found that the comments made by Ms Cantamessa did not in and of themselves relate to the employer – employee relationship but that the source of connection lay in her Facebook page which indicated that she worked for Edcon.  It then found that -  

“Edcon is a merchandiser of its various products in a competitive industry.  Ms Cantamessa as a Specialist Buyer played a pivotal role in the acquisition of such products, including ladies trending styles and fashion for Edcon.  The success of its business depends also largely on how it markets itself to the general public.  Therefore, having a good name is an essential asset or quality of Edcon to the general public.  In as much as Buyers of Edcon can and often remain anonymous to the general public, once their identities are exposed to the general public, it must only be in a positive and not a negative environment or circumstance, otherwise such disclosure imposes a risk that the name of Edcon may be brought into disrepute.  Therein lay the connection between the conduct of Ms Cantamessa with the relationship she had with her employer.  She had to avoid being a controversial employee in the public eyes where she could be associated with Edcon.”  

Having established the link, the Court concluded that – 

“Ms Cantamessa … enjoyed the freedom of expression which included freedom of the press and other media as well as freedom to receive or impart information and ideas, provided her posting did not extend to advocating hatred based on race which constitutes incitement to cause harm.  She enjoyed the freedom to criticise [the] government of the day where she felt it erred in its administrative manoeuvring.  She however did not have the right to resort to racial slurs to vent her anger.  Her conduct amounted to advocating hatred based on race which constitutes incitement to racial disharmony at the workplace and in the general public.  Her misconduct was serious in nature, was caused by a senior personnel of Edcon who had previously been a manager and it had the potential of seriously harming Edcon’s business.”

Based on these findings the Court was satisfied that dismissal was the appropriate sanction for Ms Cantamessa’s misconduct.  

We are not sure  if the Court needed to go to these lengths. It may have been more sensible for Edcon to discipline Ms Cantamessa for conduct that had the effect of causing or potentially causing disharmony in the workplace. There can be little doubt that Ms Cantamessa’s comments would have had the potential to cause disharmony in the workplace and all employees have a duty to ensure that they conduct themselves, as far as possible, in a manner that does not cause disharmony in the workplace.  

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