The guiding principle in determining whether something is better left unsaid by an employee within the social media domain (and would amount to a dismissible offence) is whether the comment made or opinion expressed has the ability to destroy the trust relationship between the employer and the employee.
Some of these issues where considered in Dewoonarain v Prestige Car Sales (Pty) Ltd t/a Hyundai Ladysmith [2013] 7 BALR 689 (MIBC) where the employer levelled charges against an employee for bringing the name of the employer into disrepute. The employee had posted derogatory remarks on a Facebook page.
Whilst no reference was made to the name of the employer, the employee stated on Facebook that "working for and with Indians is pits; they treat their own like dirt". Although the employee did not dispute that she had made the comment, she argued that it was not directed at her employer nor meant for anyone working for her employer. She said that her statement amounted to her opinion and that she was merely exercising her right to freedom of expression as enshrined in the Constitution.
The employer saw the remark on Facebook as directed at it because its directors and employees are Indians. The employer also viewed the remarks made as having the potential to negatively affect the employer's business.
The commissioner who was tasked with determining the fairness of the employee's dismissal correctly discounted the employee's reliance on the right to freedom of expression and stated that it is not an absolute right. The right to freedom of expression must be considered in conjunction with the right of an employer to maintain its reputation without damage to its business.
The unjustifiable and irresponsible remarks on social media had the potential for harm to the business of the employer. Employers have the right to minimise the risk to their businesses even if it means to dismiss an employee who deliberately places the business at risk. On this basis, the commissioner found the employee's dismissal substantively fair.
