Social media policies crucial as 'freedom of speech' cauldron boils over

As more and more employees
lose their jobs over social
media misconduct,
companies have been urged
to put guidelines in place for
the monitoring of employees’
social media profiles.
The recent high-profile
dismissals and suspensions
over inf lammatory
social media posts have
highlighted the need for the
legal rights of employers
and employees around social
media in the workplace to
be more clearly defined,
a human resources (HR)
manager for a company
operating in the freight
industry told FTW on
condition of anonymity.
Rosalind Davey, director
of corporate and commercial
law firm Bowman Gilfillan,
pointed out that while the
law in this area was still
underdeveloped, employers
and employees could look
at other statutes and the
common law to determine
social media
law.
Senior
consultant
at The South
African
Labour
Guide, Jan
du Toit,
pointed
out that
Commission
for Conciliation,
Mediation and Arbitration
(CCMA) cases against
employees for social
media misconduct were
progressively leading to
more dismissals.
“This is setting the
precedent that the
employee’s reasonable
expectation of right to
privacy is rapidly changing
due to social media usage in
the public domain,” he said.
Davey agreed that it was
evident, based on recent
cases, that the CCMA was
taking the issue of social
media misconduct seriously
and was not falling for the
“fable of special privilege,
privacy and anonymity of
employees online”.
She added however that
this did not give employers
carte blanche to use
employees’ online conduct
to execute a pre-meditated
house-cleaning. “Normal
rules of fairness and equity
apply equally to virtual
labour relations,” said Davey.
According to her, the
right to privacy may still be
relevant to discipline and
dismissal cases. “The right to
free speech also falls under
common law but the right
to dignity – which includes
the right to a good name
and reputation – generally
holds sway over freedom of
expression,” she commented.
To protect themselves
from any fall-out over
social media misconduct
by employees, Du Toit
advised companies to
ensure they had policies
in place relating to the
monitoring and interception
of communication in the
workplace.
“They can, in addition
to this, look at introducing
a social media policy that
spells out the principles
and parameters for
employees using social
media for official and
private purposes when the
employees’ affiliation to
the employer is identified,
known or presumed – such
as a high-profile political
leader or someone in the
entertainment industry,”
said Du Toit.
He said the policy should
provide clear guidelines on
how to use public platforms
– for official and private
purposes – and should explain
the consequences of failing to
adhere to the company’s social
media policy.