A 23 year old Durban employee was recently dismissed by his employer after the employee posted a rude comment about his boss on Facebook. Can an employer take action against an employee for the employee’s conduct outside of the work environment? Does the employee’s right to privacy not prevail and act as a shield against the employer’s right to discipline?
“Employees should know that they cannot bite the hand that feeds them”
Two other employees were also suspended by their respective employers following their exploits on Facebook. A 25 year old Pretoria man was reportedly suspended after posting a comment on his Facebook page about his employer’s alleged laziness. A 25 year old Johannesburg woman was reportedly suspended for promoting a competitor’s product on her profile home page. In all three instances, the employers took a dim view of the employee’s conduct in posting their comments on Facebook.
Facebook is a social phenomenon that has taken world by storm. With increased mobility of employment, many globetrotting (and less fortunate) employees use Facebook as an effective vehicle for staying in touch with friends and family. President Obama is reported to be the most popular person on Facebook. If the President of the United States of America has a page on Facebook, shouldn’t all of us have one? The reports above highlight some of the downsides of ‘Facebooking’ however.
The employer’s right to discipline its workers flows directly from the common law provision of the employment contract. Under the common law, an employee places his or her labour potential at the disposal of the employer in return for remuneration. In doing so, the employee is in a subordinate position and must subject himself or herself to the employer’s control and command. The employer has a corresponding right to issue instruction and expect obedience to all lawful reasonable instructions.
Logically, though, the employer can only control and command those actions of the employee resorting within the employment relationship. What the employee does in his spare time is of no consequences to the employer. The employer can certainly not instruct the employee (and expect compliance) of those aspects that has no bearing on the employee’s employment duties.
Whilst the courts have accepted this principle, the caveat lies in those otherwise private actions of the employee that may impact on the employment relationship with the employer, for instance, if an off-duty employee makes a defamatory statement in relation to his employer in public, this (otherwise private) action may have a direct bearing on his continued employment with his employer. Certainly, an employer cannot be expected to continue the work relationship with an employee where the latter’s actions are irreconcilable with a healthy employment relationship
But what if it took place outside of working hours or the workplace? The Courts have been willing to accept that a link can arise between the employee’s private actions and the employment relationship. Where the employee, in his private capacity, acts in a manner that negatively impacts on his employer’s business, the employer’s right to fair labour practice may trump the employee’s right to privacy. The employer may then discipline and even dismiss an employee whose after-hours conduct negatively impacts on the employer’s business.
In Van Zyl vs Opencast Service, the Industrial Court upheld the dismissal of an employee who assaulted his supervisor, in front of another employee, after hours. The Court held that the employee’s actions made a harmonious working relationship intolerable. Thus, although the employee acted outside of the workplace and after working hours, his action still linked back to the employment relationship. In assaulting his supervisor, he damaged the relationship between him and his employer beyond repair. This resulted in the dismissal being held to be fair, not withstanding the fact that it is was an ostensible private act by the employee.
Employees should also remember that they are under a common law obligation to further their employer’s business interest. This means that they may not do anything to destroy harmonious working relations with their employer or colleague. When posting comments on social networking sites such as Facebook, they should remember that potential clients, competitors and colleagues may trawl the internet for information on their suppliers, rival businesses or co-workers. In doing so, it is foreseeable that they may come across information posted by staff. Employees are labouring under a terrible misapprehension if they believe that the information they post on most networking sites are private and cannot have any bearing on their continued employment.
An employee who disrespects his employer in a public forum like Facebook should expect the same treatment as that dished out to a drunken employee shouting obscenities to his boss at the annual Christmas lunch. And an employee who punts the opposition’s business on Facebook or in an e-mail to third parties can face the same wrath as if she went on radio or television, defaming her employer. The employee’s obligation to further his employer’s business interest, or in the course of duty not to do his employer’s business harm, does not keep office hours. Employees should remember that they cannot bite the hand that feeds them.
January 13th, 2010 at 1:06 pm
Good day, please access our team page and send your cv to one of our friendly consultants who will assist you in your employment search.
January 21st, 2010 at 11:23 am
Hi Theodore,
Please kindly go to our team page and send your details to one of our friendly consultants, thanks for getting in touch