Social media is an inescapable part of our personal and professional lives, with many people using various platforms to communicate and share information. But, as we have seen more and more over the last few years, employees need to be careful about what they post on social media, as offensive, inflammatory or discriminatory comments could potentially reflect badly on the company they work for (employers themselves could be held liable), breach employment social media policies and, in turn, get them fired. Of course, in general, it’s always advisable to think before you ‘share’.

Can I get fired for what I post in my personal capacity?

It really does depend on the severity of what you’ve posted and how it could possible damage the company’s reputation.

Many companies have zero-tolerance policies regarding racist, sexist and homophobic comments because whether you are physically in the office or not, you still represent the company. In essence, you are an extension of the company and an unofficial ambassador of sorts. So, posting something, even in your personal capacity outside of working hours using your own device, that is offensive or inappropriate on social media could lead to disciplinary action against you.

But, it must also be mentioned that employees must be cautious about what they say about the company itself and their colleagues, too. In 2011, there was a case involving two employees who wrote defamatory remarks about their boss to each on Facebook, and because their Facebook privacy settings did not restrict access, the comments were considered to be in the public realm, and they were hit with a defamation lawsuit.

Surely I don’t ‘represent’ the company outside of work times?

In many ways, you do. Various findings by the CCMA or the Labour Court basically state that an employee’s conduct, whether online or offline, in this case, outside of the workplace can still have a negative impact on the working relationship. In recent years, we have also seen the rise of name-and-shame posts in which an individual being called out for a problematic post, and within seconds the person’s place of employment is identified and pressure is placed on the company to fire the individual. And because most companies have zero-tolerance policies, they have to enforce their rules. What’s more, in the case of an employee behaving in a manner that might change a third party’s (a client, for example) idea and understanding of the company, the code of conduct would still apply.

Additionally, a work relationship, like most others, is based on trust and good faith. This means that there is an expected and agreed upon base level of conduct and behaviour.

What about my right to Freedom of Speech?

 The Constitution certainly protects your freedom of speech- it’s a right you have as a South African citizen. However, it has limitations as it must be balanced against others’ rights to dignity and privacy.

What people often forget is that hate speech (dangerous, offensive or discriminatory comments based on someone’s race, ethnicity, gender, sexual orientation or religion) is not covered by Freedom of Speech. In fact, hate speech will soon be criminalised under the Prevention of Combating of Hate Crimes and Hate Speech Bill. The Bill calls for prison sentences (of up to 3 years, and up to 5 years for repeat offenders) or fines for anyone who commits a verbal or physical attack that is found to be racist or hateful. Anyone who intentionally publishes or circulates offensive information could also be punished.  The draft law was originally introduced in late 2016, and more than 75 000 public submissions were received in support of the Bill.

Will I get fired on the spot?

Unless you have committed a crime, your contract won’t be terminated immediately. In most other cases, the company must allow you to state your case and make representations as whether you are guilty or not. The appropriate disciplinary action will be determined by the findings of those sessions. Essentially, for the dismissal to be fair, the employee must be given a disciplinary hearing and the decision to let the person go or not must be based on valid reasons.

Companies and employees need to be on the same page

Companies must absolutely be clear about their social media policies and have meetings and or conduct workshops to ensure all employees understand the ins and outs. Additionally, it’s important to be open about the various disciplinary codes and grievance procedures. It’s advisable to do as much as possible to reduce any risk of the company falling into disrepute. That said, even if a company isn’t clear about its policies, it can still take disciplinary steps against an employee. If your company doesn’t have social media policies in place, suggest that it is a good idea to create one and avoid posting anything that could land you in trouble at work.

Again- think before you post

It can’t be stressed enough that you must be mindful of the views and opinions you are putting out into the public domain. Not only could it result in you losing your job, but you could face jail time as well.

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