In our interconnected world, platforms like Facebook, Twitter, WhatsApp, and LinkedIn often blur the lines between our personal and professional lives.
What employees do in their personal time is generally off-limits to employer intervention. But there is a limit.
Where an employee’s Social Media posts impact the employment relationship detrimentally, the employer may act. This is especially the case, where the posts could be perceived as Hate Speech in South Africa’s historical and political context.
What may be seen as Hate Speech on Social Media?
Any post propagating, advocating or communicating words based on one or more of the prohibited grounds (race, gender, sex, ethnic or social origin, colour, sexual orientation, belief, culture, and language) against any person that could reasonably be interpreted to demonstrate a clear intention:
- to be hurtful,
- to be harmful or to incite harm, or
- to promote or propagate hatred.
The CCMA and our Labour Courts take a tough stance on racism, echoing the Constitutional Court’s call for an unapologetic response to such conduct.
Racism, whether on or off the clock, is unacceptable and violates constitutional values. The following three matters clearly illustrate this:
In Shamuyarira vs Commodity Inspection Group (Pty) Ltd (CCMA), the employee made discriminatory comments in a WhatsApp group, claiming superiority over White and Indian colleagues. The Commissioner found these words intended to hurt others based on their race. The employee’s dismissal was found to be fair.
In Clarence vs Express Employment Professionals SA (Pty) Ltd (MIBC), the employee claimed that an autocorrect error in a WhatsApp post resulted in a racial slur. The commissioner however ruled in favour of the employer. Once again, the employee’s dismissal was found to be fair.
Lastly, in African Meat Industry & Allied Trade Union vs Makhoba and Clover SA (Pty) Ltd (CCMA), an employee posted a call for violence against a racial group on Facebook. The Commissioner labelled the employee’s conduct as grossly offensive racist misconduct. The timing of the post was irrelevant; the employer had a legitimate interest. Again, the employee’s dismissal was deemed to be fair.
Conclusion:
These cases illustrate that social media posts of this nature are not immune to employer scrutiny.
Privacy and freedom of expression, in as far as after-hours conduct, does not exempt employees from accountability, and may be grounds for dismissal where this conduct is found to be detrimental to the employment relationship.
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