Almost every South African uses social media in one form or another. From chatting with friends, to keeping track of your favourite celebrity, to buying or selling goods online. Examples of such social media platforms include Facebook, Google, and even WhatsApp. However, with the increase in the use of social media, so does the amount of labour disputes because of the use of social media.
In a recent CCMA case, Masondo/AG Electrical (Pty) Ltd [2022] 4 BALR 400 (CCMA) an employee was dismissed after he had sent a WhatsApp message threatening to kill his employer as well as an official of the company’s bargaining council. This message was in a response to the company’s action of placing its employees on ‘short-time’ (shortened working hours) during the Covid-19 pandemic.
Interestingly, two contradictory views were placed before the Commissioner at the CCMA. On the one hand, the employer perceived the WhatsApp message as an intentional threat of physical violence against them. On the other hand, the employee argued that he was merely trying to help his fellow co-workers who faced a similar challenge. In the end, the CCMA held that the employee did not effectively dispute the employer’s version and showed no remorse or sound reasons for his own conduct.
The result was that the CCMA held that the employee’s conduct was seen to have broken down the employer-employee relationship and his dismissal was thus confirmed to be substantively and procedurally fair.
In this way, the CCMA confirmed that WhatsApp messages can present grounds for dismissal, subjected to the merits of each case.
In another example of an earlier case back in August 2020, Discovery Health had dismissed 10 employees for contravening the company’s social media policy and acting maliciously against the company. This conclusion was drawn due to the messages which had been sent in a WhatsApp group.
The WhatsApp group was started innocently enough. The origin of the group was in support of each other after contracting Covid-19 in April 2020. However, it seems the messages soon turned malicious in that the discussions on the group revealed in clear and explicit details of coordinating efforts to shutdown the company. In addition, despite the availability of an internal grievance process, the group members failed to raise specific concerns internally, but rather posted it on WhatsApp.
It seems that the issue of posting controversial content on social media is not new but South Africans continue to publish potentially harmful content on a frequent basis. Not only can such messages get workers in hot water and potentially losing their jobs, but workers could also be charged for defamation.
The Constitutional Court confirmed that the law of defamation is designed to compensate a victim for any publication that injures the victim in their good name and reputation. The court had set out the elements of defamation succinctly as: the wrongful and intentional publication of a defamatory statement concerning the wronged party.
In the past, a ‘publication’ was limited to hard copy prints. However, with the advent and evolution of electronic communication, the internet and social media, examples meeting the requirement of “publication” will self-evidently include email and WhatsApp messages.
What is even more important to understand is that South African law considers repeating or sharing defamatory content as sufficient to constitute ‘publication’ and, thus, defamation, even if the repeater or sharer was not the author of the original defamatory post.
It is therefore very important for any business to ensure that they have a well-known social media policy implemented in the business. Similarly, staff members need to be vigilant that they do not fall within this social media trap and lose their job.
