Can you discipline an employee for their comments on social media?
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: Can they 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.
Only take disciplinary action if an employee’s online comments damage your reputation
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.
Does controlling employees’ social media activities curtail their freedom of expression?
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 employer.
Every employee has the right to identify his or her employer. This 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. 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 your hands are completely tied.
If you don’t want your employees to name you on social media, try to make it part of their employment contracts
But remember that the employee must agree to this. You 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, warn your employees against making inappropriate comments in the public domain or, by association, bringing the your name and reputation into disrepute.
For example, an employee’s profile on Facebook may not be harmful to the name and reputation of his employer but that might not be the case if his profile (and the name of the employer) appeared on a pornographic site, especially if the employer is openly opposed to such sites.
Inform your employees about your disciplinary code for Internet transgressions
The purpose of this is to warn employees that if they voluntarily disclose the employer’s identity on a social media site, and in doing so also make any comments that could be interpreted as harming your reputation, they may be subject to disciplinary action.
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.
You should also be advised to adjust their privacy settings to limit the publication of information in the public domain.
