Are negative or derogative postings on social media a valid ground for dismissal?

Abstract

Social media has influenced the world in many different ways and the sphere of employment law is no different. We see a dramatic increase in cases regarding the dismissal of employees for posts on social media and this results in the important question: Is a negative or derogative post on social media a valid reason for a dismissal? Even though we do not have specific legislation dealing with social media in the workplace, the Labour Relations Act 66 of 1995 provides us with clarity as to the reasons why an employee may be dismissed. The Act further states the substantive and procedural aspects of each type of dismissal one must comply with before a dismissal can be deemed fair. It is important for an employer to have a code of conduct, otherwise known as a disciplinary code. That clearly stipulates the rules within the employment relationship. Such a code or policy will also provide the suggested consequences for the breach of said rules. If such a breach resulting in misconduct is classified as serious, dismissal may be an appropriate sanction. This dissertation seeks to determine whether a negative or derogative post on social media can be regarded as a form of misconduct and a valid ground for a dismissal in terms of the South African labour law sphere. Section 188 of the Labour Relations Act provides us with the three grounds for a fair dismissal, these being an employee?s conduct or capacity, or the operational requirements of the employer. To reach such a conclusion, various legislation will be examined and the South African position will be compared to the legal position in the United Kingdom.