Social media influences every facet of our daily lives, including the employment relationship.

The right to freedom of expression and the right to privacy are popular defenses raised by employees in response to allegations of misconduct for making inappropriate remarks on social media platforms.

The right to freedom of expression is derived from section 16 (1) of the Constitution as follows:

“Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.”

The responsible parameters of exercising freedom of expression are however limited by section 16 (2) of the Constitution, which provides that:

“The right in subsection (1) does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

The right to privacy is derived from section 14 of the Constitution as follows:

“Everyone has the right to privacy, which includes the right not to have their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed.”

Section 14 is subject to limitations that are reasonable and justifiable. The matter between Sedick v Krisray (Pty) Ltd (2011, CCMA Arbitration Award), is a good example of how an arbitrator dealt with the right to privacy in relation to social media posts. The arbitrator held that the right to privacy cannot be raised as an absolute defence to an allegation of disciplinary misconduct because “the internet and Facebook is a public domain unless access to such Facebook is restricted by its members”.  The employee’s privacy defence thus failed and the dismissal on grounds of gross misconduct for making disparaging remarks about the employer was upheld.

Dismissals have been upheld as fair in various cases which raised the alarm of potential incitement of violence, for example, in Dagane v SSSBC and others, the employee was dismissed after he posted the following racist remark on Facebook:

“[F**k] this white racist [s**t!]. We must introduce Black apartheid. Whites have no ROOM in our heart and mind. Viva MALEMA. When the Black Messiah (NM) dies, we’ll teach whites some lesson. We’ll commit a genocide on them. I hate whites.”

The Labour Court concluded on review that the dismissal was fair because the remarks were tantamount to hate speech.

Also in, Dewoonarain v Prestige Car Sales (Pty) Ltd t/a Hyundai Ladysmith (2014, MEIBC Arbitration Award), an employee posted the following racist comment on Facebook:

“Working for and with Indians is pits; they treat their own as dirt.”

The arbitrator concluded that the dismissal was fair because the remarks were unjustifiable, irresponsible and had the potential to harm the business of the employer.

In Dyonashe v Siyaya Skills Institute (Pty) Ltd (2018, CCMA Arbitration Award), the Arbitrator upheld the dismissal of an employee for making the following remark on social media: “Kill the boer”.

In our opinion, statements/remarks that incite violence on social media platforms, especially such as those made during the recent unrests in KwaZulu-Natal and Gauteng, are no different from the cases mentioned above. Such conduct constitutes serious misconduct which may lead to dismissal. The capability of an employee to incite and encourage lawlessness and disregard for human life can arguably attack the root of the trust relationship, which may render the prospect of continued employment intolerable.

Michelle Naidoo and Jasmin Reddy (Mooney Ford Attorneys)