The recent dismissal of a staff member at a daily newspaper in
Johannesburg for making inappropriate comments on Twitter about the
publication, poses new dilemmas for South African employers.
The question is whether employers can forbid their employees
from disclosing their company's identity on Facebook, Twitter
or other social media profiles. Moreover, is it within the
employer's rights to discipline an employee who refuses to
In both instances, the answer is no. Disciplinary action can
only be taken if the employee makes inappropriate online comments
about the employer which could potentially damage the reputation of
the company. Recently, there have been a number of cases before the
Commission for Conciliation, Mediation and Arbitration (CCMA) in
which employees were dismissed for publishing negative comments
about their employers on social media sites.
In some cases, employees were even dismissed for making comments
not directed at their employer, but which still amounted to
disciplinary offences such as racial slurs. Some of these
dismissals were found to be fair as the employees concerned had
brought the employer's name into disrepute by making such
Employees' rights to freedom of expression
For the rest, any attempt to prevent employees from mentioning
their employer's name on their social media profiles or social
media sites could be seen as interfering with their rights of
freedom of expression.
This is because South African employment legislation recognises
an employee's constitutional right to freedom of expression
when it comes to the identity of his or her employer.
Every employee has the right to identify his or her employer and
implies that an employer may not prohibit an employee from
disclosing the employer's identity, nor may the employer
discipline an employee for doing so.
Furthermore, an employer may also not favour, or even promise to
favour, an employee in exchange for not exercising their right to
freedom of speech about the employer's identity.
This however does not imply that employers' hands are
Amending the employment contract
Employers who do not wish employees to name them on social media
sites can attempt to make this part of the employment agreement
with the employee. The employee must agree to this and employers
should not try to unilaterally amend the terms and conditions of an
existing employment agreement.
Where employment contracts do not require employees to refrain
from identifying their employer on social media sites, it is
recommended that employees be warned against making inappropriate
comments in the public domain or, by association, bringing the
employer's name and reputation in to disrepute. For example, an
employee's profile on Facebook may not be harmful to the name
and reputation of his or her employer but that might not be the
case if his / her profile (and the name of the employer) appeared
on a pornographic site, especially if the employer is openly
opposed to such sites.
Employers are advised to send a notice to employees in terms of
its disciplinary code and procedure in this regard. The purpose
would be to warn employees that should they voluntarily disclose
the employer's identity on a social media site and in doing so
also make any comment that could be interpreted as harming the
reputation of the employer, they may be subject to disciplinary
Social media is increasingly becoming part of the mainstream
media and employees need to be aware that they are communicating
with a potentially unknown audience.
Employees should also be advised to adjust their privacy
settings to limit the publication of information in the public
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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