In 1989 the way we communicate changed forever. This was the year the worldwide web was invented, opening up seemingly endless possibilities for interacting and communicating with people. Before that, we were limited to radio, television or printed media. As technology developed, social media, which include platforms such as Facebook, Twitter and Instagram, entered the equation. The idea behind social media is to have instant access to a network of people with whom to share our thoughts, ideas, feelings, etc.
These activities might be good for social media companies, but they are of concern to employers. Such concerns include the following:
Employees are expected to devote their time and attention to the work for which they were appointed. Those who spend time on social media during office hours can hardly claim they are optimising their time and using it wisely for the benefit of the company. Less time spent working equals less productive time. Employees who claim they are unable to complete their tasks due to time constraints, yet spend time on social media during office hours, are likely to face disciplinary action.
Employers generally provide their staff with laptops or PCs, together with access to the internet. This comes at a cost to the employer. Accordingly, costs incurred by the employer should be limited to usage that benefits the company.
Employees are mistaken if they think statements made on social media in their private capacity or after hours will not be subject to scrutiny by the employer and the law.
In the case of Sedick & another / Krisray (Pty) Ltd  8 BALR 879 (CCMA) two employees were dismissed as a result of offensive Facebook status updates. The fairness of the dismissals was challenged at the CCMA. The Commissioner found that the employees were fairly dismissed as their privacy had not been infringed when their employers accessed their Facebook posts. Their Facebook privacy settings were not restricted and the updates were open for public access and viewing. Section 4 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (Act No. 70 of 2002) (RICA) reads: “Any person. . . may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence”. The Commissioner ruled that the employer was entitled to intercept the posts in terms of RICA.
Employers are advised to implement social media policies in the workplace. The do’s and don’ts of social media interaction listed in these policies should be highlighted. It is advisable to deal with social media use during both office hours and after hours.
About our author: Audrey Cloete obtained her LLB degree from the North-West University Potchefstroom in 2003. She completed her articles with the main focus on Criminal Law and is also an admitted Conveyancer. Audrey joined SERR Synergy in 2015 where she currently works as a Legal Compliance Advisor.
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