HOW TO FIRE YOURSELF ON FACEBOOK (WHILE ON VACATION LEAVE)[Tuesday, March 10, 2020 12:22:16]
The 21st century is abuzz with mind bogglingly amazing technological advances. Paradoxically, it seems that the more evolved society becomes, the less intelligent the behaviour of its citizens becomes. This paradox is regularly found in the workplace. The case of Edcon Ltd v Cantamessa & others (2020) 41 ILJ 195 (LC) is a case in point.
The facts of Cantamessa
The employee, a senior specialist buyer employed with Edgars, a retail company in the Edcon group, was on vacation leave at the time when former president Zuma replaced the Finance Minister, Nhlanhla Nene, with relatively unknown Des Van Rooyen. This move caused a massive loss to the South African economy, estimated at more than R250 billion. It was widely reported in the media. This so upset the employee, that she posted the following comment on her private Facebook page:
‘Watching Carte Blanche and listening to these fucking stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president ... President my fucking ass!! #zumamustfall! This makes me crazy ass mad.’
Although the employee was on leave and her comments were not work related at all, her Facebook profile stated that she was employed by Edcon as a fashion buyer. Shortly after her post, members of the social media community complained about the post. Her post was also circulated on Twitter and at least one person voiced her outrage at the employee’s comments, which were viewed as racist.
The employee was subsequently brought before a disciplinary hearing. The employee defended herself by arguing inter alia, that her comments were not racist and that she was merely highlighting incompetence and also that her comments were made outside working hours and were not made in connection with her work. The disciplinary chairperson found her guilty and she was dismissed. At the CCMA, she admitted that members of the public may find her comments racist. She maintained however that her comments were not made at the workplace or during working hours. The commissioner was persuaded by the employee’s arguments and found that the employee’s dismissal was substantively unfair, inter alia, for the following reasons:
1. The employee’s Facebook post did not pertain to her work;
2. a reasonable reader of the post would not have associated her comment with the employer;
3. Edcon’s social media policy, internet policy and code of ethics did not apply because the employee had not used Edcon’s equipment to publish her Facebook post and it was not done while at work. The commissioner awarded the employee maximum compensation, equal to 12 months’ salary.
The Labour Court’s decision
The Labour Court reviewed and set aside the award. In doing so, the Court, per Cele J, relied on the Labour Appeal Court’s judgment in Hoechst (Pty) Ltd v Chemical Workers Industrial Union & another (1993) 14 ILJ 1449 (LAC), where the court said: ‘At the end of the enquiry what would have to be determined is if the employee’s misconduct “had the effect of destroying or of seriously damaging the relationship of employer and employee between the parties”.’ In its judgment, the court made the following important findings:
1. An employer has the authority to discipline employees for misconduct committed outside the workplace and outside of working hours;
2. An employer must establish a connection between the misconduct committed and the employer’s business and show that there was an effect on the trust relationship;
3. The employer had established a connection between the misconduct and the employer’s business because the employee stated on her Facebook profile that she was employed by Edcon. This link was sufficient to bring the employer’s name into disrepute for tolerating racism, thereby rendering the dismissal fair.
The moral of the story
Employees should guard against placing controversial comments on social media platforms and should especially be careful when their employer is identified on their private Facebook profile. Common sense (which is not commonplace) should inform the employee to be careful not to put the employer’s reputation at risk, by posting controversial or provocative comments on social media.
Employers should warn and inform their employees of the dangers of social media and preferably train the employees or at least institute a written policy regarding the use of social media in and outside of the workplace.
Rudolf Kuhn- labour law attorney, Pretoria, February 2020