Work-related group chats have become all too common in South Africa, where employees and employers can communicate at the touch of a button, even outside of working hours, raising the possibility of something controversial being said.
But can an employee be fired for a WhatsApp message?
According to law firm Wright Rose-Innes, it is possible to be fired for WhatsApp messages if certain factors are considered and if there is a valid reason for an employee’s dismissal.
To determine whether there are valid grounds for firing an employee for misconduct, the following may be considered:
- Has the employee violated a code of conduct or standard in the workplace?
- If the rule or norm was broken, was the rule a valid or reasonable rule or norm?
- Was the employee aware, or should reasonably have been expected, to be aware of the rule or standard?
- Has the rule been consistently applied by the employer?
- Is dismissal an appropriate sanction for violation of the rule or standard?
In a recent CCMA arbitration, the CCMA had to decide whether an employee fired for a WhatsApp group message was fair or not.
In this case, the employee, a senior security company employee who works for a customer of the company, posted a message to a customer’s WhatsApp group, essentially urging employees not to get vaccinated against Covid-19.
Wright Rose-Innes added that the client company had made a decision to encourage its employees to get vaccinated and incentivize those who did.
“The fired employee disagreed with this incentive, but was told by his employer that, as the client’s hired security company, they were not involved in the client’s policies and therefore instructed the employee to keep his opinion to himself. ”
Despite these instructions from the employer, the employee proceeded to post an article in the customer’s WhatsApp group, which also includes members of the customer’s senior management. The article was intended to discourage employees from being vaccinated by their employers.
Within the meaning of the Labor Relations Act, a dismissal is unreasonable if an employer has not properly motivated the dismissal or if the dismissal has not been conducted in accordance with a fair procedure.
The employer subsequently fired the employee for this position and the employee referred the matter to the CCMA for arbitration. Applying the above considerations, the CCMA has determined that:
- Although the issue of vaccination is controversial, the client company did not impose mandatory vaccinations, but only encouraged employees to consider them.
- The employee, despite protesting that he was merely sharing information, clearly endorsed the article.
- The WhatsApp group was not created for the purpose for which the employee was using it and he was aware of it.
- While there was no specific rule against posting to the group, it was reasonable that an employer could not be expected to publish a rule for every possible violation. In this case, the employer had warned the employee not to post because it could damage the relationship with the client.
- The employee had gone beyond his limits because it was not his job to warn the customer or his employees about the customer’s policy.
- The employee’s actions brought the employer into disrepute with the client, who was about to cancel the security contract with the employer.
The CCMA therefore ruled that, given the circumstances, the dismissal of the employee was an appropriate sanction.
What can be inferred from this is that social media and group information sharing platforms, such as WhatsApp, do not live outside an employee’s normal responsibility to act in good faith towards their employer, Wright Rose-Innes said.
“Employees should therefore be very careful when posting and consider whether there could be a breach of this duty or reputational damage to their employer when using such platforms or posting information. It does not mean that an employee can be fired for anything, but careful consideration is certainly advisable.”
From an employer’s perspective, it is also advisable to formally regulate the employer’s policy with regard to social media and group communication and to ensure that employees are aware of these limits and can therefore better adhere to them.
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