These days we have technology at our fingertips. Smartphones mean that people have access to the internet wherever they are and the likes of Facebook and Twitter make sharing personal news with friends as simple as pressing a button. On the whole, comments and status updates are relatively innocuous; however, a problem arises when people grow so accustomed to sharing their every feeling with their online friends that they forget to filter what they are publishing.
There have been a string of recent cases in the CCMA in which employees, who were obviously having a bad day at work, decided to share this information on Facebook by posting derogatory comments about their work or employer. In many cases the outcome has been the dismissal of the employee. This is because negative comments about an employer are seen as bringing the employer’s name into disrepute, gross insolence or insubordination and these comments often lead to a breakdown in the trust relationship between employer and employee.
Unless a Facebook user specifically enables the setting which restricts access to friends alone, the contents of his or her Facebook page are within the public domain and any internet user has the ability to access the page. However, even if access is restricted to the user’s friends only, the employee may still not safely be able to make derogatory comments. This is because of the possibility of the user and employer having mutual friends or the user being friends with a fellow employee. Either of these friends may be inclined to bring the comments made by the employee to the employer’s attention.
In a recent matter an employee of Gold Reef City Casino was dismissed for posting derogatory comments, and the dismissal was upheld by the CCMA.
In this case the employee had posted on his Facebook page that he had been fired by his employer for being gay, which the employee knew was not the truth. The employee then followed up with a comment which read "F*** you all" and thereafter clarified that the comment was not directed at his friends but rather at "GRCC". The commissioner found that it was clear that "GRCC" referred to his employer, who was easily identifiable and that the employee had intended to bring his employer’s name into disrepute.
Interestingly, in this matter, unlike some other CCMA awards, the question of whether or not the employee had activated privacy settings was not discussed. The commissioner found that because the employee had 700 friends, and the offending comments were posted for all of them to see, this publication was sufficiently widely distributed so as to have serious consequences and result in bringing the employer’s name into disrepute.
In light of this, and considering the duty of good faith which is owed by employees to their employer, it is advisable that Facebook users vent their work-related frustrations on an appropriate platform and refrain from splashing these frustrations across the pages of Facebook.
Candice McGregor is a Professional Assistant in the Employment Law Department at Garlicke & Bousfield Inc.