Social networking sites allow individuals to construct an online profile or web-page within the Internet and communicate with other subscribers through e-mail, blog and comment sections, sharing personal information like photographs, music and video clips.
MySpace.com, Friendster.com, Blogger.com, Twitter, YouTube and Facebook.com are examples of social networking sites that are popular especially with teenagers and young adults.
It is estimated that more than 8 million people use Facebook.com every month.
As the popularity of blogs and social networking sites continues to rise, so does the risk that employees will post inappropriate information online.
Employees can disclose trade secrets or other confidential information (such as business plans, new products or services, customer and client information, financial results and trade marks), they may post defamatory, harassing, or disparaging information about their employers, co-workers and supervisors, criticise customers or clients and other important business partners, make statements supporting competitors and so on.
Employers should be legitimately concerned about the effect their employees’ online presence may have on the company and its reputation.
Employee online behaviour can have unexpected and unfortunate ramifications. Legally, employers may be held vicariously liable for an employee’s defamatory, harassing or inappropriate comments on social networking sites.
Are employers entitled to take disciplinary action for their employees’ online misbehaviour?
A number of factors will need to be considered: Whether the misdemeanour occurred at work or outside working hours; whether employees have the right to privacy; whether the employer can rely on evidence that was meant to be private; whether the employee’s position in the company makes a difference and whether the remark or comment damages the employment relationship.
I haven’t yet come across Zimbabwean cases dealing with instances of employee online misbehaviour and how these have been dealt with. However, there are so many foreign examples to learn from.
In the CCMA (South African) case of Sedick & Another v Krisray (Pty) Ltd, two senior employees were dismissed for using Facebook to denigrate their employer (a family-owned business) and other members of management.
They exchanged remarks that include:
“Trust me, no one can put up with so much sh** when the f***ing kids join the company!”; “From so-called professionalism 2 dumb brats runnin a Mickey Mouse business”; “What an idiot”; and “a very ugly man with a dark soul”. In these circumstances, the CCMA arbitrator found that dismissal was a fair sanction.
The arbitration award was concluded with the following statement: “If employees wish their opinions to remain private, they should refrain from posting them on the Internet”.
In January 2007, John Bush, a Florida teacher was fired after his superior discovered inappropriate material on Bush’s personal MySpace web-page. School officials were concerned that the webpage contained personal information about Bush that “parents would not want children to know about their teacher”.
In 2008, Virgin, a UK-based airline dismissed 13 staff who participated in a discussion on Facebook in which passengers were described as “chavs” and allegations were made that planes were full of cockroaches.
The employees were disciplined for bringing the company into disrepute.
In December 2009, Amanda Tatro, a University of Minnesota mortuary science student, wrote on Facebook that she wanted to use a trocar from her laboratory class “to stab a certain someone in the throat”.
A trocar is an embalming tool used in funeral parlours to let fluids and gas out of a dead body.
She was disciplined by the university for violating the student code of conduct by engaging in “threatening, harassing or assaultive conduct”.
She challenged in court the penalties imposed by the university authorities — which included being failed and having to complete a psychiatric evaluation — arguing that the university had no authority to do that.
The court upheld the penalties, stating that regardless of the intention behind the posts, the university had an interest in protecting its students and faculty from all potential threats.
Former Liverpool footballer Ryan Babel was slapped with a fine by the English Football Association for trashing the integrity of referee Howard Webb by posting a doctored photograph of Webb in a Manchester United shirt on Twitter.
In another case, cricketer Kevin Pietersen was fined by the English Cricket Board after he complained online about being dropped from the England squad.
Social networking is both good and bad. Good, because it lubricates the wheels of society by connecting people across the world and helping them to understand other cultures. In its absence, life would be mechanical and insular!
With good comes the bad, however, as unfettered employee access to social networking sites, blogs and the Internet presents a myriad of problems to the employer.
In a flash, unfavourable postings by an employee turn into a record that may be accessed by a competitor, government regulator, seen by a co-worker or manager who was criticised or ridiculed, viewed by a recently interviewed graduate who is deciding whether to accept a job offer, or by an executive involved in negotiations to buy your company!
Employees should be advised that whether on duty or off duty, they have no reasonable expectation of privacy in what they post in cyberspace.
They need to be reminded that social media is public and what they post has the potential to be seen around the world in seconds.
Indeed, that is the very nature and purpose of these social networking sites or else they would cease to exist.
They need to be warned that abuse or misuse of networking sites may result in discipline, up to and including termination.
The rapid growth of social networking means employers should also revisit their information technology policies and evaluate whether they are sufficient to cover this new form of media.
That will help protect them against liability and litigation, from both outside and within the organisation.
Isaac Mazanhi is a labour analyst. He writes in his personal capacity. He can be contacted on e-mail: email@example.com