The temptation to constantly check your personal emails, WhatsApps, SMSs or the latest posts on Facebook, Twitter or Instagram – and to fire off an immediate response – is extremely powerful.
Too much time spent on social media during the working day can, however, cost you your job – and the dismissal will be upheld by the Labour Court as we see from the recent judgment in the matter of Lucas Dysel Crouse Incorporated v CCMA and others (handed down on 19 February 2021).
The employee, who worked for a firm of attorneys, had to answer to three allegations at a disciplinary hearing. The first was that she was in breach of confidentiality when discussing the salaries of administrative staff with others. The second related to allegations of continuous insubordination. In the third the employer contended that the employee spent too much time accessing social media and playing computer games, resulting in poor work performance.
Prior to the disciplinary hearing she was issued with a final written warning stating inter alia that she was slow to respond to instructions; had “poor file organisation”; was “regularly on social media platforms”; showed no respect “for authority when instructions are given”; and exhibited a “general lack of interest and poor work ethic”.
She was warned that unless her work performance significantly improved in the near future, she might have to face a disciplinary hearing which could result in her dismissal.
The employee dismissed the concerns with contempt, describing the issues of concern referred to in the warning as “ridiculous and untrue”.
When she continued with her conduct, she was dismissed following a disciplinary hearing.
The CCMA Commissioner concluded that there was a lack of evidence relating to her alleged excessive use of social media, and that the employer did not have a policy to control the use of social media. She was found “not guilty” on all the charges, and awarded nine month’s compensation amounting to R135 000.00.
On review, the Labour Court disagreed with the Commissioner’s conclusions as far as the social media findings were concerned.
The court found that the Commissioner had misunderstood the charge. It did not relate to whether she was on social media more often than others in the office, but rather whether “she devoted too much time to it at the expense of her work”.
The court further found that:
- There was in fact a workplace rule relating to the private use of computers;
- Professional staff for whom she was supposed to do typing, did their own typing because they could not rely on her to complete work assigned to her in time;
- The monitoring report showed that she spent between a quarter and a third of her time on activities not work related;
- The time spent on social media and playing games “was directly linked to the complaint about her work performance”;
- The employee failed to heed a final written warning to rectify her conduct in this regard.
In setting the CCMA Award aside, the court confirmed that the employee’s dismissal was substantively fair.
The importance of this judgment is that employers must have a policy regulating access to social media during working hours, warning that a breach of such policy may lead to dismissal.
