No More Joking Around - Termination of Employment in SA

Caution should be exercised when sharing content about your employer on social media platforms like WhatsApp, Facebook, Instagram, TikTok, etc. Whether intended as a joke or not, such posts could result in the loss of your job.

A recent incident brought before the Commission for Conciliation Mediation and Arbitration (CCMA) underscores the importance of employees exercising caution when sharing what they deem as "jokes" on social media platforms. This specific case, reviewed by Jacques van Wyk and Andre van Heerden of Werksmans Attorneys, involved an employee who served as an operator at the Ford Motor Company of South Africa.

In May 2023, the employee transmitted a message via a WhatsApp group comprising 47 members, announcing that, due to Stage 6 Load Shedding, the Ford Struandale Engine Plant would be shut down for the afternoon and night shifts from 8 pm on 3 May 2023 until 6 am the next morning. Additionally, the message indicated that the affected shifts would be placed on a lay-off on Wednesday, 3 May 2023, with the provision that, in the absence of any changes, the affected employees would be expected to resume work on the following day, 4 May 2023.

Subsequently, the company terminated the employee for misconduct.

The applicant, a member of the National Union of Metalworkers of South Africa, brought the case to the CCMA, contesting the substantive fairness of his dismissal. Ford contended that the misconduct was exceedingly serious, bordering on fraud, and had the potential to cause 47 employees to miss work, thus impacting Ford's production and jeopardizing its daily targets. While the applicant acknowledged sending the message to the group, he asserted that it was deleted within seconds, and he subsequently sent another message clarifying that it was meant as "just a joke." However, Ford argued that the message was only removed after management intervened. The employee maintained that Ford did not suffer any losses due to the "joke" and asserted that his termination was overly severe.

Analysis by the CCMA: The Commissioner referenced the Code of Good Practice: Dismissal of the Labour Relations Act 66 of 1995 (LRA), highlighting its stipulation that "employers and employees should treat each other with mutual respect" and that "employers are entitled to satisfactory conduct and work performance from their employees."

As only the substantive fairness of his dismissal was contested, the Commissioner referenced item 7 of the Code, which mandates that anyone evaluating fairness of a dismissal for misconduct should consider “whether or not the employee contravened a rile or standard regulating conduct in, or of relevance to the workplace; and (a) if the rule od standard was contravened, whether or not… (iv) dismissal was the appropriate sanction for the contravention of the rule or standard.” Therefore, in assessing the appropriateness of the sanction for the misconduct, the Commission examined the severity of the misconduct and the significance of deterring other employees form engaging in similar misconduct.

In evaluating the seriousness of the misconduct, the Commissioner considered the context of the message. With higher stages of load shedding occurring in the first half of 2023, numerous companies struggled to meet their production targets. The Commissioner emphasized that load shedding is a grave issue and should not be taken lightly. Furthermore, the Commissioner noted that employees within the group might have accepted the message without question, potentially dissuading them from reporting to work. This, in turn, would have led to the failure to achieve their daily targets.

The applicant's actions were also deemed dishonest, with the message viewed as a purposeful and premeditated act. Even though the message was removed, its deletion did not absolve him of responsibility, as it should never have been posted in the first place. "Consequently, the Commissioner determined that dismissal was a fitting penalty and substantively fair given the gravity of the misconduct," stated the experts. Ultimately, "employees who share messages on their employer's social media platforms must contemplate the ramifications on the employer and the fellow colleagues.”

Source: Businesstech, 2024

Feel free to reach out to Arivu Recruitment and Consulting for guidance on talent attraction and support in meeting your business requirements. Our team is prepared to provide you with expert advice and assistance.

Contact a member of our team at 010 590 0508 or info@arivurecruitmentandconsulting.com / jobs@arivurecruitmentandconsulting.com

You can also visit our website www.arivurecruitmentandconsulting.com