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The internet has over the years increasingly become an inseparable part of the work environment. Many employers allow employees access to the internet for research or other purposes. Emails have become an indispensable communication tool. There have been an increasing number of dismissals related to internet or information technology offences. According to a recent publication, IT related offences have now overtaken ‘traditional’ offences in the workplace. Recently, CCMA Commissioners have had to deal with a new offence namely that of employees venting their anger or opinions about their employer or managers on social media websites such as Facebook.

A case that appears to have established the general approach to such offences is that of Sedick and Another v Krisray (Pty) Ltd (2011) 20 CCMA 8.7.1. In short, the two employees (an operations manager and bookkeeper) did not take lightly to this family owned business appointing their son to a management position. These two employees posted a number of extremely offensive comments on the operations manager’s Facebook wall. The employees were charged with “bringing the employer’s name into disrepute in the public domain”. The employees were dismissed after a disciplinary hearing but challenged their dismissal on the basis that they did not mention any person or the company’s name.

The following is an example of some of the postings made by the employees on Facebook: “But one cannot be happy in a family business, especially when the kids join the company after you have been there for six years and they try everything in their power to make you look stupid.” “Trust me noone can put up with so much shit when the fing kids join the company! Now we have the son working there as well who has no idea but is pretending he has a clue!” “Office drama! Family business! Kids join the company with no experience! Need I say more . . .” “. . . today was hectic with frankenstein”, being a reference to Mr Coetzee. “u need to park ur car a lil bit straight I mean wtf dnt u want me to park my car on ur long f lip rather it prop wil wnt b straight either with a lip like tht”. This was referring to Wesley Coetzee, on instruction from Ms Coetzee, asking Sedick to park her car between the lines of an allocated space rather than at an angle. To this posting De Reuck replied “What an idiot!!”

The Commissioner essentially found that the publication of such comments, particularly by senior personnel on a public forum, constituted a serious offence. Even though the company or individuals names were not mentioned, former or current employees that accessed the pages would not have had much difficulty in identifying the persons referred to. These senior employees had made derogatory comments about the company and some of its managers and their relatives. He determined that although some of the comments may be regarded as merely gripes, others were definitely hurtful, embarrassing and damaging to both the persons concerned as well as the company.

The arbitration established a clear description of what entailed social networking sites such as Facebook:

• Facebook is a social networking internet website. Access to the site is open and free. Members create a personal profile and set their desired privacy settings. Communication between members is by means of posting messages on their personal page, referred to as a “wall”, and by responding to postings on the walls of their “friends”.

• Privacy and “friends” are inextricably linked. A member may restrict access to his/her wall to his/her friends only. Status as a “friend” is achieved by invitation or request. One member invites another or requests another to be a “friend”. If the other member confirms the request or invitation, status as “friend” is conferred. That “friend” may then access, and make postings on, the walls of all his/her other friends.

• In order to establish a friendship, a member searches for another, using the site’s search engine, by name or email address. When the page for that person is found, the person searching opens the link to that page and submits a request to be added as a “friend”.

• If the privacy setting on the recipient’s page is restricted to friends only, it is only at the point of confirmation of friendship that the prospective friend can access that person’s wall. Before that, anyone accessing another person’s wall will not be able to see the postings.

• A member can also see certain postings of a person who is not his/her friend, when there is a friend common to both. Thus, if B is a friend to both A and C, but A and C are not friends with each other, and B writes a comment on a posting by C, A will be able to see both C’s original posting as well as B’s comment.

• However, if the member has not put in place any access restrictions to his/her wall, then anyone who accesses that person’s wall can freely read all postings. Employees should be careful of what they post on public forums. The internet and social communication sites are, unless restricted by the users, open to all and sundry to view. Trashing the employer on these websites could very well result in a sudden end to what would otherwise have been a long and illustrious career.

Andre Rabe