Confidentiality & Social Media in the Workplace

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Social Media is omnipresent, with an ever increasing interest and use of social media platforms, an employer may find the need to implement control mechanisms. The right to Freedom of Expression is conscientiously protected and is referenced by users of social media in an attempt to justify a post however the question of “What are the limitations of such right?” needs to be answered. The accessible nature of social media can be incredibly useful, with its benefits infinite, it is inevitable that an employer would question the risk that an employee’s social media activity may impose on their business. Without controls in place, employers may find themselves at the mercy of an insensitive or derogatory post of an employee. Employees seem to be unaware of the potential consequences of posting to social media accounts, resting solely on the right to Freedom of Expression and the Right to Privacy as a safety net.

In Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA), the fairness of a dismissal was challenged by the Applicant when the employer accessed the Applicants Facebook posts, specifically a derogatory status update. In this instance the employee failed to restrict their privacy settings on social media allowing any person including individuals who were not linked to the users account access to the employee’s posts and updates. The Commission found that the employer was entitled to access the employees posts, in terms of the Regulation of Interception of Communications and Provision of communication-related Information Act 70 of 2002 (RICA) and that the Applicants dismissal was therefore found to be fair. Furthermore, due to the accessibility of the employee’s social media account, the employee’s right to privacy had not been breached in anyway.

To contrast the above ruling, it is noted that in Smith v Partners in Sexual Health (non-profit) (2011) 32 ILJ 1470 (CCMA), the Applicants dismissal was found to be both substantively and procedurally unfair, after the Applicant alleged that her right to privacy had been violated. In this instance the employee’s private email account was accessed, in her absence, and it was established that the employee had shared information regarding the organization with persons outside of the organization as well as with former employees, specifically. The initial access to the account, by the employer was accidental however after the discovery of the content of the emails, the employer intended to access the email account further. The employee faced disciplinary action, with a number of charges being brought against the employee based on the content of the emails that were accessed. The Commissioner found that the deliberate access of the Employees emails, by the employer had contravened RICA, further to this it was found that the method in which the evidence, that being the emails, were acquired was inadmissible centered on the employers infringement of the employees constitutional right to privacy.

With social media here to stay, employers need to take precautionary measures. Employers are tasked with implementing policies and procedures regulating the use of social media and advising the employee of the consequences of breaching such procedures. Social media policies governing the use of social media coupled with training on the appropriate usage of social media is recommended in order to prevent reputational harm being suffered by the employer. Whilst employees may face disciplinary measures for misconduct related to the their private social media accounts, this should not be an technique utilized by employers to infringe on an employees right to Freedom of expression and the right to privacy, nor should an employees online activity be used pre-meditatively by the employer. The crux of misconduct related to an employee’s online activity is whether or not the right to privacy is breached during the investigative stage and the intention of an employer. Due process is still required in order to ensure the procedural fairness of a dismissal related to misconduct and a direct link to the employer is essential in order to satisfy the substantive fairness of the dismissal.

“Technology is a useful servant but a dangerous master”-Christian Lous Lange.

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