Sparrow’s remarks which have, to a certain extant, caused her previous employers reputational harm. It is unknown whether any of the abovementioned dismissals or sanctions will be challenged formally by the relevant employees.
THE IMPORTANCE OF FOLLOWING A SUBSTANTIVE & PROCEDURAL FAIRNESS PROCESS IN CASES OF SOCIAL MEDIA MISCONDUCT
The interests of the employer, in these instances, do not necessarily override the rights of an employee as provided for in terms of the Labour Relations Act 66 of 1995 (hereinafter referred as “the Act”). It is still a requirement that the process adopted in instituting disciplinary action and/or the summary dismissal an employee, must be substantively and procedurally fair. The dictates of procedural fairness require that an investigation into whether grounds for dismissal exist must be undertaken followed the employee being afforded an opportunity to make representations as to why they should not be suspended pending an investigation for the alleged misconduct or why they should not be summarily dismissed, as the case may be. Upon receipt of such representations, the employer must notify the employee of the decision taken to either institute disciplinary proceedings, thereafter to be placed on paid suspension, or to summarily dismiss the employee.
Substantive fairness where social media misconduct is concerned, would require proof of the offence, knowledge of the workplace rule and the reasonableness thereof, consistency in application of the rule and the appropriate sanction to be adopted which could either result in summary dismissal or being placed on a final written warning.
Whether an employee can be dismissed on what is commonly referred to as “twitter rants” and unbecoming behaviour on their social media profile, will depend on the circumstances of the employee’s case. Therefore, a company is better positioned to defend its decided course of action against an employee where it has adopted and implemented a social media policy which clearly defines what would constitute “social media misconduct” and codifies the appropriate sanction which such conduct would attract. Effective education and communication of this policy enables employers to protect their interests and allows for employees to bring their behaviour in line with the policy.