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During the past couple of months, we have seen an increase in disciplinary action taken against employees due to the “incorrect” use of social media.

The first point to note is that any adverse posting done by an employee could have a negative effect on the Company. An employer whose employee commits a delict whilst acting within the course and scope of his or her employment may be vicariously liable for any damages cause because of the delict. It is therefore important for the employer to educate their employees as to what is correct and acceptable behaviour in terms of the Company’s values when it comes to posting any comment on social media. We also recommend that a chapter in the Company Handbook should spell out the Company’s position and the effect it can have on the employee if he or she does not adhere to it.

In a judgment in Khumalo and others v Holomisa, the Constitutional Court said: “the value of human dignity in our Constitution is not only concerned with an individual’s sense of self-worth but constitutes an affirmation of the worth of human being in our society. It includes the intrinsic wort of human beings shared by all people as well as the individual reputation of each person build upon his or her own individual achievements. . . . . . . . . It should also be noted that there is a close link between human dignity and privacy in our constitution.” (Social Media in the Workplace by R Davey and L Dahms-Jansen)

When training your staff, it should be made very clear that according to our Constitution, freedom of speech is not an absolute right, but the right to privacy and dignity is. What this means is that the privacy and dignity of a person is more important than the freedom of speech.

The next point to be highlighted is that social media does not have boundaries. If a posting is done at home about a fellow employee, it is viewed by our court as if it is done at work. The same applies to the time it is posted. The employee can not hide behind the fact that the posting was done during his time off work.

Postings can also be done about a company or its bosses or working conditions. Although this might look as trivial, it could land on the desk of one of your biggest clients. It could also become public knowledge and have serious repercussions.

Again, I would like to emphasize the importance of training, even if you think it does not effect the Company. It may affect it in many ways (morale, negative publicity, civil claims etc.) Even a non-company posting could create a negative image of a company and lead to a civil claim (vicarious liability).

If you need assistance with the training, feel free to contact us. Should you require more information, please go to our website: www.wilbrink.co.za or alternatively give me, Frans Wilbrink, a call on 031 – 266 9035 or on my cell 083 265 3805 or e-mail me at wilbrink@icon.co.za