Freedom of speech or expression can easily be linked to the usage of social media. This can be observed by how frequent employees get dismissed for the usage of social media and incorrectly exercising their right to freedom of speech in the workplace. We explore The use of Social Media and Freedom of Speech in the Workplace: Rights and Responsibilities in this article.
Section 16 of the Constitution gives all people living in South Africa the right to freedom of speech. This right is not perfect and should be accompanied by its responsibilities. The right to freedom of speech does not operate in isolation . This means that certain actions (i.e. what is written on social media) and sayings will allow for employees to be held accountable by their employers and the courts.
If an employee makes remarks that offensive and threatening on social media platforms, and the employer considers these remarks to be damaging to its good name and reputation by way of association, then the employer is generally entitled to dismiss the employee. This was demonstrated in the case of Dagane v Safety & Security Sectoral Bargaining Council. In this case a police officer made bitter and racist comments on the Facebook page of the leader of the Economic Freedom Fighters, Julius Malema. The Labour Court found the dismissal of the officer to be fair. “It was found that the police officer committed egregious misconduct in that he not only used disgraceful and racist language constituting hate speech, but he did so in his capacity as a police officer and did so on a quasi-public forum which was accessible to thousands of people on Facebook.”
Offending and threatening the company one works for on social media platforms or at work affects the company’s image and ultimately can affect company profits. Destructive behaviour can not be defended by the right to freedom of speech as it neglects the responsibilities that come with that right.
In the Seminar presentation hosted by Law firm Bowman Gilfillan (Dismissals for social media misconduct.” DR, December 2012:6  DEREBUS 80), Ms Davey made an argument that the reasonable expectation of privacy is rapidly changing due to social media usage. She also added that the right to privacy can be reason enough to discipline and dismiss employees for social media misconduct . On employees’ rights to freedom of speech versus the companies’ right to dignity, she stated that the right to a good name and reputation are in a way part of the right to dignity, which generally perceived is more important over freedom of expression, hence why the employer may opt for dismissal for social media misconduct.
In maintaining the employment relationship, there has to be transparency in the workplace. The employees must freely exercise their right to free speech and expression and the employer must also freely exercise their right to privacy and dignity. Social media and freedom of speech in the workplace does not have to cause conflict but strengthen the employment relationship, and all that can be achieved if communication channels are open so that both parties know what behavior counts as misconduct and what behavior does not.
For professional advise and guidance in relations to abuse of social media and/or training on how employees can use social media carefully and effectively to promote the company in good faith, please contact us.