Don't slate your boss on Facebook

CAN an employee criticise his employer on Facebook and get away with it?

Section 16 of the Constitution of the Republic of South Africa, 1996, guarantees the right of freedom of expression.

Section 36 of the Bill of Rights provides for the limitation of a right to the extent that the limitation is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom; taking into account all relevant factors, including among other things the nature of the right and the nature and extent of the limitation.

Employees should be wary of bringing their employers into disrepute on Facebook, as such conduct could result in dismissal.

The Commission for Conciliation, Mediation and Arbitration (CCMA) recently dealt with just such a situation.

With the intention of inviting employees as Facebook friends, the company's marketing manager clicked on their profiles and found that:

• The employees had not put in place the necessary privacy settings and, as a result, she was able to view the contents of their pages without inviting them as friends.
• The contents of the relevant employees' pages had negative comments about their employer, as well as obvious references to the marketing manager and others in management positions. There was no direct use of names but the reference was clear.

The employees denied that the derogatory remarks were aimed at members of the company and also insisted the remarks had been made in jest.

In their defence the employees argued that the marketing manager had invaded their privacy by accessing their profiles.

The CCMA commissioner found that the employees had a choice to restrict access to their Facebook pages.

But in this case the employees had failed to exercise such choice and so their pages remained wholly in the public domain.

As a result, any person using the internet could access their pages.

The commissioner held: "If employees wish their opinions to remain private, they should refrain from posting them on the internet."

The CCMA also found that the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, will protect an employee's right to privacy only where the necessary privacy settings are in place.

In addition, the CCMA found that the employees' adverse comments served to bring management into disrepute with company employees and the public and that the potential for damage to their reputation with customers was real.

As a result the employees' dismissal had been substantively fair.

The CCMA also found that misconduct committed by employees that strains the continued working relationship or damages trust is sufficient grounds for dismissal.

• Modise is deputy chairperson of Eversheds and McKechnie, a candidate attorney