Lance Michalson

The CCMA has made two interesting decisions about whether it is unfair for an employer to dismiss an employee for posting intentionally offensive statements about their employer on a social networking website, like Facebook. The decisions are reported under Sedick & another / Krisray (Pty) Ltd [2011] JOL 27445 (CCMA) and Fredericks / Jo Barkett Fashions (2011) 20 CCMA 8.24.3.

The employees in each case were fairly dismissed, because the Arbitrators held that their privacy had not been infringed when their employers accessed their Facebook posts. The employees had published the statements in the public domain by not restricting their Facebook privacy settings. The CCMA took the view that, their employers were entitled to intercept the posts in terms of South African monitoring law.

These decisions raise the question, “How can organisations manage the use of social networking websites by their employees properly?”

What Happened?

In the first decision, the employees (De Reuck and Sedick) were employed by a fashion accessories company (Krisray (Pty) Ltd) as an Operations Manager and Bookkeeper respectively.

The company’s Marketing Manager (Ms Coetzee) logged into her Facebook account and navigated to De Reuck’s facebook page, because she wanted to send her a friend request. She was able to see everything on the employee’s Facebook wall without being given access as a friend. This included posts by Sedick and other employees. She was also able to see everything on Sedick’s Facebook wall without being a friend.

Ms Coetzee found offensive comments about the company and its management in posts on the employees’ Facebook walls. Another employee referred to Ms Coetzee and her brother in a post as,

“2 dumb brats runnin a mickey mouse business”

Sedick referred to the Director of the company as,

“a very ugly man with a dark soul”

In the second decision, the employee (Fredericks) also worked for a fashion company, but in this case, as an Administrative Assistant.

The company’s General Manager (Ms Barkett) accessed the employee’s Facebook page, because she had been told about offensive statements posted there. She found the statements in posts by the employee, including some name calling.

The employees in each decision were dismissed by their employers because of the statements they posted on Facebook, but they took the matters to the CCMA to challenge the fairness of their dismissals.

Unfair dismissal?

In the first decision, the employees argued that they had not damaged the company’s reputation, because they had not directly referred to the company or anyone who managed it. But, Ms Coetzee argued that the references to the company and its management were obvious. The Arbitrator agreed with her, because the people who were reading the comments would probably have known what and who they were about.

Sedick claimed that she had restricted access to her Facebook wall and argued that Ms Coetzee could have only seen the posts ‘illegally’. She was implying that Ms Coetzee had accessed the posts by logging in as someone else who would have been given access to Sedick’s Facebook wall – in other words, a friend. But, Ms Coetzee had printouts showing that she could see everything on Sedick’s Facebook page (including the offensive statements) and that the ‘add Friend tab’ was still visible. This showed that the employee had not restricted access to her page in any way. So, the Arbitrator dismissed Sedick’s claim.

De Reuck conceded that she had not restricted access to her Facebook page at all, but argued that her right to privacy had been infringed when Ms Coetzee looked at the posts.

In the second decision, the employee argued that her Constitutional right to privacy had been infringed when Ms Barkett looked at her posts. But, Ms Barkett argued that the posts could be seen by the general public and that they affected the company’s employees and key customers.

Ms Barkett submitted that Fredericks had breached the terms of her employment contract by publishing offensive statements about the company and its general manager on a social networking website, even though the company did not have a Social Media Policy.

Fredericks argued that dismissing her was too harsh a punishment and that all her circumstances had not been taken into account.

The CCMA’s understanding of Facebook

The Arbitrator in the first decision referred to the ‘Dummies Guide to Facebook’ and focused on how it related to privacy and the public domain.

He said:

  • Users make a personal profile and set their privacy options.

  • Users communicate by posting and responding to messages on their own and each others pages (known as walls in the case of Facebook).

  • ‘Privacy’ and ‘friends’ are connected, because users can restrict access to their walls to only their friends.

  • Posts by users who have restricted the content of their pages to only their friends can only be accessed after that user has received a friend request from another user and accepted it, and then only by that new friend.

  • But, anyone can see anything on a user’s page if they have not selected any of the access restriction privacy options (this is important, because it opens your Facebook page up to the entire world).