Facebook, Twitter and other social network sites are part of many people’s lives, some more than others. As a consequence, employees are active and post comments, read comments or chat on a continuous basis on these sites, also during work hours. Apart from idling your time away, what you say there can also constitute misconduct. In Sedick & another v Krisray (Pty) Ltd [1](2011) 20 CCMA 8.7.1 and [2011] 8 BALR 879 (CCMA), the applicant employees, respectively the respondent employer’s operations manager and bookkeeper, were dismissed for “bringing the employer’s name into disrepute in the public domain”.

The charge arose from messages “posted” on the operations manager’s “Facebook wall” on the internet, in which derogatory comments were made by the three employees about the owner and members of his family employed by the respondent. Various postings contained obvious references to Ms Coetzee herself, to her father and also to her brother.

There were also references to the company itself. The employer acknowledged that neither employees expressly used the name of the company or of any persons, but the references were clear. Ms Coetzee argued that the seriousness of these comments had to be considered in the context of (a) De Reuck’s position in the company; (b) De Reuck’s position as representative of the company on a day-to-day basis to both customers and suppliers; (c) the comments being made in a forum which was fully accessible to anyone, including those same customers and suppliers, and (d) the comments being made and responded to by both former and current employees, the latter being considerably junior to De Reuck. Sedick was in a position of trust and, as bookkeeper, dealt with company matters as well as Mr Coetzee’s private investments. The posting of comments of a personal nature about himself as well as his children caused Mr Coetzee considerable affront, particularly as he and Ms Coetzee were part of the senior management of the company.

A third employee charged with the same offence was given a final warning and the employees complained about inconsistent behaviour as well. The dismissed employees claimed that the comments had not brought the employer’s name into disrepute because neither the company nor the persons referred to had been specifically named, and that their privacy had been breached by the employee who had accessed their pages.

The commissioner mentioned that the ever-increasing access to and use of the internet has been, and continues to be, both a blessing and a curse to business worldwide. The advent of social networking sites such as Facebook particularly so. Apart from the problem of employees accessing these sites during working hours, using employers’ resources and thereby causing considerable losses to industry, there is an additional problem of the use to which these sites are put. This dispute is a case in point. The dispute arose not from the employees’s use of the site during working hours, (although from the evidence it is clear that they were at least some of the time doing just that) but from the comments they made and with whom these were shared on that site. The commissioner found that consideration must first be given to whether or not the employer’s possession of the evidence constituted a breach of the employee’s privacy, as was argued.

The Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002, as amended, may apply in this instance. In this statute, “interception” is defined as the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication, and includes the monitoring of any such communication by means of a monitoring device; or viewing, examination or inspection of the contents of any indirect communication; and diversion of any indirect communication from its intended destination to any other destination. Section 4(1) of the same Act provides that any person, . . . may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence.

The question of public domain impacts on whether or not the aforementioned provisions apply in this instance. The internet is, for the most part, public domain. That is to say, access is unrestricted by the sites themselves. Facebook is, therefore, in the public domain. However, it is also clear that the unrestricted access is at a general level only. The members may exercise options to restrict access to their personal pages and the content of those pages. In this instance, however, the employees did not.

The internet is generally part of the public domain. While Facebook users may restrict access to their pages, the employees had not done so. A manager had obtained unrestricted access to one of the employee’s pages when setting up her own Facebook page. This being the case, the employees’ pages remained wholly in the public domain and the employer was free to access them. The admissibility of the employer’s evidence was, accordingly, not an issue, nor was it a breach of privacy. In the absence of access to the pages being restricted, their pages remained wholly in the public domain. By extension, any person using the internet qualified as a party to the communications, including Ms Coetzee, and as a consequence, she was entitled to intercept, that is, to read, download and print, these communications in whole or in part. The employee’s postings were, to all intents and purposes, available to the public in the same way that blogs and public comments on news media sites, or letters published in newspapers are available. The commissioner found that as a consequence of their failure to make use of the privacy options, the employees abandoned their right to privacy and the protections of Act 70 of 2002.

The commissioner then looked at the question as to whether the comments posted serve to bring “the company name, Director, management and staff into serious disrepute in the public domain”? The employer argued that they did. The commissioner agreed. The employees were intentionally communicating with subordinates within the company as well as with ex-employees and other persons. Despite their protestations to the contrary, it was highly likely that, in addition to the current and ex-employees, some of these other people were aware of the identity of the employer. This meant that two of the senior employees in the organisation were publicly making derogatory and demeaning remarks about the director and management to persons who, on the balance of probability, were fully aware about whom these comments were being made.

The employer went on to argue that the potential for damage to the company and its management’s reputation amongst its customers, clients and competitors was considerable, given the open access to the comments. A competitor employs De Reuck’s sister. This was a legitimate argument to the commissioner. It was also argued that the relationship between, in particular, De Reuck and the other subordinates, pursued through the medium of Facebook, was inappropriate as it crossed hierarchical bounds and encouraged and condoned the lack of respect for management that was openly expressed in the postings by the subordinates. This too was a legitimate argument.

Whilst some of the postings were quite innocuous and not, in my opinion, quite as damaging to the employment relationship as was argued, a greater number were, without doubt, extremely serious and, if not constituting insubordination, certainly constituted gross insolence. Sedick’s postings about both Mr Coetzee and Wesley Coetzee were particularly caustic. Her denial of the attribution of the references contained in some of these comments did not help her argument, as she was, quite clearly, in so denying, being untruthful.

Taking into account all the circumstances – what was written; where the comments were posted; to whom they were directed, to whom they were available and last but by no means least, by whom they were said – the commissioner found that the comments served to bring the management into disrepute with persons both within and outside the employment and that the potential for damage to that reputation amongst customers, suppliers and competitors was real. As a consequence, taking into account the factors set out in paragraphs 51–54 above, the commissioner found that the dismissal was substantively fair.

Inconsistent application of a rule or sanction does not necessarily constitute unfairness, particularly where the apparent inconsistency can be justified by differences in the circumstances. In this case, De Reuck and Sedick initiated many of the comments, often feeding off one another. Julius and the others who escaped sanction responded to what had been posted. Furthermore, De Reuck and Sedick were senior staff, Operations Manager and bookkeeper, as opposed to the junior status of Julius et al. The differentiation between the perpetrators in terms of the sanctions was justified by the circumstances and does not constitute an act of unfairness. The employees’ dismissals were upheld.

By Johanette Rheeder of Johanette Rheeder Attorneys

For more information contact Johanette on jrattorneys@yebo.co.za

This article was first published on the SA Labour Guide website