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Is social networking your employees’ smoking gun?

Thu, 01 Dec 2011 09:54

By Linda Smith and Bruno Bruniquel

“Privacy is dead, and social media holds the smoking gun.” – Pete Cashmore, Mashable CEO

One of our consultants recently was called to chair a disciplinary enquiry where an employee had made a comment: “I hate Indians with a passion” on her Facebook page. Not surprisingly, it wasn’t long before someone in her department saw the comment and brought it to the attention of management. The employee was eventually dismissed for using hate speech, making racist comments, causing disharmony within her department and bringing the organisation into disrepute.

She did not contest the dismissal but the case is not dissimilar to another recent case.

In Sedick & another v Krisray (Pty) Ltd [1] (2011) 20 CCMA 8.7.1 and [2011] 8 BALR 879 (CCMA) employees were dismissed for ‘bringing the employer’s name into disrepute in the public domain’. The dismissals arose as a result of the employer’s Operations Manager posting negative comments about the company and its owners on his Facebook wall. The Bookkeeper and another employee subsequently also made negative comments on the posting.

The commissioner found that the comments were made in a forum, which was fully accessible to anyone, including customers, suppliers and other employees. By putting negative comments regarding the employer and other employees on Facebook, the employees made the issue public. In so doing, they gave up their right to privacy because their actions had a direct impact on the employment relationship.

The explosion of social networking and media sites like Facebook, Twitter, LinkedIn, MySpace and others that have yet to come to our attention, have been eagerly embraced by business. They are a valuable way of connecting and marketing to customers, getting instant feedback and advertising products or services. However, there is a downside to social networking and media sites.

What is social networking?

Social networking involves web-based services that allow individuals to create a public or semi-public profile within a circumscribed system. By this, individuals can communicate with a chosen list of other users who share this system by accessing, sharing and disseminating information (including audio-visual material). This all occurs through electronic communication tools.

It is the interactive and global nature of social networking and media that is both a blessing and a curse. Some companies have already experienced Facebook or Twitter ‘rants’ about their products or services. The web is filled with sites such as ‘the 5 Worst Social Media Campaigns’ or ‘How Social Media Campaigns Have Gone Wrong’. Clearly there is lots of room for error in using social networking and media to market products and services.

As we have seen from the two Facebook dismissal cases, there is also huge potential for conflict in the employment area. Apart from individual acts of misconduct, during strikes and disputes the use of Twitter and other sites could enflame a situation (as happened in the UK riots earlier this year).

Questions

Some questions which are pertinent to the handling these cases are as follows:

Privacy?

While employers do not have the right to monitor the private lives of their employees, employees have a common law duty to act in good faith in their employer’s best interests. They may not do anything that may harm the employer’s business, including posting negative comments on social networking media sites.

This requirement is clear cut in the cases of emails sent from an employer’s computers or cell phones and is normally covered by the employer’s existing Electronic Communications Policy.

Comments about other employees can create disharmony and racial tension in the workplace. The can cause embarrassment and resentment across an organisation and a loss of productivity. It is obviously a situation that no employer should accept and which needs to be dealt with firmly.

While case law around social networking media is still evolving, it is clear that employers need to implement a Social Networking Media policy. They also need to ensure that both management and employees are aware of their respective rights and limitations.

Employees need to be made aware of their responsibility when posting comments or information on the web. They also need to be taught how to restrict access to their social networking sites such as Facebook and to recognise the potential dangers in making comments which could be perceived by others to be harmful or hurtful. In short, a quote from Erin Bury, (Sprouter Community Manager) says it best: Don’t say anything online that you wouldn’t want plastered on a billboard with your face on it.”

For more information visit Bruniquel & Associates