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Cancelling a contract in the face of a public social media outcry is not without risk

Cancelling a contract in the face of a public social media outcry is not without risk

2nd February 2016

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The possible brand damage to employers that can flow from inappropriate social media use by their employees is frequently highlighted. This is according to Ros Davey, a partner in Bowman Gilfillan Africa Group’s Employment & Benefits Practice.

"The public fallout that followed the tweets and posts by #PennySparrow, #ChrisHart and #GarethCliff has been the topic of many conversations, articles and tweets and illustrates these dangers all too clearly. However, cancelling a contract in the face of a public social media outcry may also have negative implications," she says.

Davey notes that on Friday (29 January), the High Court ruled that Gareth Cliff be reinstated as a judge on Idols. This finding was based on the existence of a verbal or tacit agreement between M-Net and Cliff. The court found that M-Net breached this contract when it notified Cliff that he would no longer serve as a judge on Idols. The court does not appear to have put much store in M-Net’s argument that it was entitled to terminate the contract with Cliff based on the public outrage that his tweet evinced.

"The court weighed up the prejudice that Cliff would suffer if the relief was refused against the prejudice that M-Net would suffer if the relief was granted and accepted that Cliff’s brand would be jeopardised and tainted. The court was also not satisfied that there was a factual basis on which to claim that the Idols brand would suffer if Cliff were to be reinstated on a temporary basis," she notes.

"It must be stressed, that the Judge’s relief is interim relief and that a final decision remains to be made. We are of the view that once the Judge was satisfied that Cliff had established a prima facie right, she was correct in awarding interim relief," she explains.

Davey says that the lesson from this judgment is that, while terminating a contract or indeed dismissing an employee for conduct on social media may be lawful and fair, it is not always the appropriate response. Although Cliff was not an employee and the dispute was a contractual one, this has lessons for the workplace.

It is noteworthy that employers must be aware that for a dismissal for conduct on social media to be fair, there must have been misconduct by the employee that renders continued employment intolerable and the employer must have followed a fair procedure.

"It is still important for employees to be careful what they post, because even if they are ultimately successful in defending a dismissal, it may be a costly exercise. This judgment should not be seen as giving social media users carte blanche to say what they choose," she adds.

Submitted by Bowman Gilfillan

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