By Rosalind Davey,Lenja Dahms-Jansen Monday, October 01, 2012

The CCMA is generally the first avenue of choice for employees to challenge their employers, irrespective of whether their claims are legitimate or not. While the CCMA’s decisions are binding on the parties and have material and often costly consequences for employers, they are not legally binding precedent. There has been a recent spate of decisions by the CCMA which has shown that commissioners are confirming dismissals of employees where they have made derogatory online comments about their employers and that, in such instances, an employee’s right to privacy may be limited or even forfeited.

In Sedick & another v Krisray (Pty) Ltd certain employees made derogatory comments on Facebook about the management of the employer. When the marketing manager of the employer set up her own account on Facebook she found that she could access all the posts on the employees' profiles and was able to read their comments. The employees were subsequently dismissed. In challenging the fairness of their dismissals, the employees alleged that the employer had suffered no damage because their posts had not referred to anyone by name. The employees also alleged that by accessing their profiles, the employer had infringed on their rights to privacy.

The commissioner considered the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA”), which regulates the interception of communications and decided that the employer was entitled to access the discussions as the employees had “open” Facebook profiles.

Although the employees alleged otherwise, the commissioner found that they had failed to use their privacy options and had thus abandoned any claim to privacy and to the protections of RICA.

Considering what was written, where the comments were posted, to whom they were directed, to whom they were available and by whom they were made, the commissioner confirmed that the comments brought the employer’s good name and reputation into disrepute with persons both inside and outside the organisation. The employees’ dismissals were accordingly confirmed.

In Fredericks v Jo Barkett Fashions the employee was dismissed by her employer for publishing derogatory statements about her employer and manager on her Facebook profile. The employee alleged that her right to privacy had been infringed insofar as her employer had never implemented a policy relating to social media use. The Commissioner confirmed the decision in Sedick and upheld her dismissal.

In Media Workers Association of SA on behalf of Mvemve and Kathorus Community Radio, the employee was employed by a community radio station. He posted remarks on Facebook criticising the organisation's board, and its station manager, who he claimed was a criminal. Ultimately the employee was dismissed.

It does not appear that the issue of privacy was raised in the CCMA. The commissioner based his decision on the fact that the employee had tarnished the image of his employer by posting unfounded allegations on Facebook without having addressed them internally first. The employee’s dismissal was accordingly confirmed.

Of what value are these cases to us? Firstly, commissioners are taking the issue of social media misconduct seriously and are confirming dismissals where employees have made derogatory statements about their employers on social media platforms such as Facebook. Secondly, commissioners are not falling for the fable of special privilege, privacy and anonymity of employees online.

However, while dismissals relating to social media misconduct are generally being confirmed, employers cannot use employees’ online conduct to execute a pre-meditated house-cleaning; normal rules of fairness and equity apply equally to virtual labour relations.

Rosalind Davey is partner at corporate law firm Bowman Gilfillan and Lenja Dahms-Jansen is an associate at Bowman Gilfillan.