1 1 : ~N..WJU.-~ I M06007055i0 [LJBRARY Selected challenges associated with the dismissal of employees for social media-related misconduct in the South African workplace K Lekopanye G orcid.org/ oooo-0001-6691-310X Dissertation submitted in the fulfilment of the requirements for the Master of Laws at the North-West University Supervisor: Prof H Chitimira Co-Supervisor: Mrs E Gresse LIBRARY MAFIKENG CAMPUS Graduation May 2018 : CALL NO. : Student number: 23144378 2018 -tt- t 4 ACC.NO.: ( NORTH-WEST UNIVERSITY DECLARATION I hereby declare that the dissertation entitled: Selected Challenges Associated with the Dismissal of Employees for Social Media-Related Misconduct in the South African Workplace, is my own work and all the sources used herein have been acknowledged. I have not at any time, submitted this work to any university for any qualification. Signature of candidate ... @ .·. .... ... ...... ... ...... ..... .. ...... University number: Signed at. ...... ....... ....... .. .. .. ...... this .. .... ..... day of. ....... .... .. ......... ....... 20 .... . Declared before me on this ...... day of. ...... .... .. .... .. .... .. .. .. ........ ........ . 20 .. .. Supervisor .... ..... ... .... ..... ... ... ........... .. .. Co-Supervisor ... .. .. .... ..... ..... .... ... ....... . ACKNOWLEDGEMENTS This research would have not been possible without my supervisor Prof H Chitimira and my co-supervisor Mrs E Gresse, I humbly thank them for their support, patience, encouragement and guidance. To my mother and siblings, I am grateful for their sacrifices, love and support they continue to give me. This research was supported in part by the National Research Foundation of South Africa-(Grant Numbers: 106056). ii DEDICATION To my late grandmother, I thank you for the life lessons. Lastly, I thank God for the strength, for I can do all through him. iii ABSTRACT The research seeks to explore the adequacy of the regulation of social media-related misconduct in South Africa. In this regard, selected challenges associated with the dismissal of employees for social media-related misconduct in the South African workplace are highlighted. Accordingly, such challenges that specifically include the legislative gaps and Constitutional conflicts and/or flaws relating to social media- related misconduct dismissals are analysed. The research noted that various legislative challenges are still associated with the dismissal of employees for social media-related misconduct in South Africa. For instance, labour laws such as the Labour Relations Act 66 of 1995 does not adequately regulate cases for social media-related misconduct in the South African workplace. This research discusses Constitutional conflicts and/or flaws relating to the employees' rights to dignity, privacy, freedom of expression and freedom of association in relation to unlawful dismissals for social media-related misconduct in the workplace. The researcher recommends that adequate social media legislation should be enacted in South Africa to combat the misuse of social media in the South African workplace during working hours. Keywords: Social media misconduct, dismissal, employees, employers, legislative gaps, Constitutional conflicts. iv LIST OF ABBREVIATIONS BCEA Basic Conditions of Employment Act 75 of 1998 CCMA Commission for Conciliation, Mediation and Arbitration COIDA Compensation for Occupational Injuries and Diseases Act 130 of 1993 EEA Employment Equity Act 55 of 1998 Fordham J.Corp and Fin.L. Fordham Journal of Corporate and Financial Law LRA Labour Relations Act 66 of 1995 N.C. L. Rev North Carolina Law Review N Ky L Rev Northern Kentucky Law Review Nw.J. L. and Soc.Pol'y Northwestern Journal of Law and Social Policy OHSA Occupational Health and Safety Act 85 of 1993 PAIA Promotion of Access to Information Act 2 of 2000 PDA Protected Disclosure Act 26 of 2000 PEPUDA Protection of Equality and Prevention of Unfair Discrimination Act 4 of 2000 PER Potchefstroom Electronic Law Journal POPI Protection of Personal Information 4 of 2013 V RICA Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 Rutgers L Rev Rutgers Law Review SA Mere U South African Mercantile Law Journal SAO South African Computer Journal SAHRC South African Human Rights Commission SAU South African Law Journal U. Pa. J. Const. L University of Pennsylvania Journal of Constitutional Law Wash. L. Rev. Washington Law Review vi TABLE OF CONTENTS PAGE DECLARATION .•.•.•.••••••••••.••.•.•.••••••••••••••.••••.•••••••••••.•.•.•.•.•••••.•.••.•.•••••.•.•.•.•••.•• i ACKNOWLEDGEMENTS •••.••.•. •.•....•••.•.•••.•.•.•.•.•.•••.•.•.•••...•.•.•...........••• .••••. •.•.•• 11 DEDICATION ..........•......••.....•.....................................•................................. 111 ABSTRACT ••• ■ ••• ■ ••••••••••••••••••••••••••• ■ ••••••••••••••••••••••••••• ■• ■ •••••••••••••••••••••••••• ■• ■ ••••• IV LIST OF ABBREVIATIONS ............................................................................. V TABLE OF CONTENTS •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• VII CHAPTER ONE ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 1 RESEARCH OUTLINE AND CONTEXT ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 1 1.1 Introduction ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••.•••••••••.••••••• 1 1.2 Background of the Research• •••••••••••••••••••••••••••••••••••••••••••.•••••••••••••.•.• 3 1.3 Statement of the Problem •••••••••••••••••••••••••••••••••••••••••••••••••••••••.•.•••.•.• 8 1.4 Aims and Objectives• .•••••••••••••••••••••••••••••••••.•.•••.••••••••••••••••••••••••••.••• 10 1. 4.1 Aim s................................................................................................ 10 1.4.2 Objectives •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 10 1.5 Rationale for the study •••••••••••••••••.•••••.•••••••••.•.•.•••••••.•••••••••••••••.•••• 11 1. 6 Limitation of the study •••••••••••••...••.••...••••••.•••••.•••••••...........•.•.•••••••• 11 1.7 Research Methodology .•.••••••••••..............••.•.•••••••.••••••....•....••••••••••••. 12 1.8 Structure of the disser-tation ••••••...••...•••••••.•••••••.•••••.•..••.•••.•••••••.•.•• 13 CHAPTER TWO •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 14 DISMISSAL ON THE BASIS OF SOCIAL MEDIA-RELATED MISCONDUCT ... 14 2.1 Introduction .•........•....••..............••••................•........•..•.....••......•....•• 14 2.2 Definition of key terms and concepts ............................................. 15 2.3 The procedural and substantive fairness ofs ocial media-related dismissals under the South African employment laws ........................... 19 vii 2.3.1 The Labour Relations Ad. ...................... .. ............ ............................. 19 2.3.2 The Employment Equity Act. ............................................................. 20 2.3.3 The Basic Conditions of Employment Ad ........................................... 21 2.3.4 The Protection of Equality and Prevention of Unfair Discrimination Act22 2.4 Problems Associated with Social Media Communications. ............. 22 2. 4.1 Liability for Innocent Statements on Social Media ... .. ............ .............. 22 2.4.2 Liability for Derogatory Statements on Social Media ........................... 26 2.5 Examples of Employee Misconduct through Social Media .............. 29 2.5.1 Cyber bullying by employees .. .. ........................................................ 29 2.5.2 Harassment ..................................................................................... 30 2.5.3 Employee productivity and evaluation ............................................... 31 2.6 The Legal Consequences for Social Media-Related Misconduct. .... 32 2. 6.1 Reputation of the business ............................................................... 33 2. 6.2 Vicarious liability .............................................................................. 34 2.6.2.1 The requirements of vicarious liability ................................................ 35 2.6.3 Copyright and trade mark infringements. ........................................... 37 2.6.4 Insider Trading ................................................................................ 39 2.6.5 Restraints of trade and confidentiality ............................................... 39 2. 6. 6 Breach of fiduciary duties ................................................................. 41 2.7 Employer's role in combating social media-related misconduct ... 42 2.8 Conclusion .......................................................................................4 3 CHAPTER THREE ......................................................................................... 44 LEGISLATIVE CHALLENGES ASSOCIATED WITH DISMISSALS OF EMPLOYEES FOR SOCIAL MEDIA-RELATED MISCONDUCT ........................ 44 3.1 Introduction ....................................................................................4 4 3.2 The Labour Relations Act. ...............................................................4 5 viii 3.3 The Basic Conditions of Employment Act ....................................... 52 3.4 The Employment Equi'ty Act• ••••••••••.••••.••••••••••••••••••••••••••••••••••••••••••• 53 3.5 The Promotion of Equali'ty and Prevention of Unfair Discrimination Act. ....................................................................................................5 5 3.6 Occupational Health and Safe'ty Act ............................................... 57 3.7 Compensation for Occupational Injuries and Diseases Act. ........... 58 3.8 The Protected Disclosure Act• ••••••••••••••••••••••••••••••••••.•••••.•••.•••••••••••• 59 3.9 The Regulation of Interception of Communications and Provision of Communication-Related Information Act ............................................... 60 3.10 The Protection of Personal Information Act. .................................. 66 3.11 Electronic Communications and Transactions Act. ......................... 68 3.12 The Promotion ofA ccess to Information Act. ................................. 70 3.13 Film and Publications Act• •.•.•.•••••.•••••.•.••••••••••••••••••••.•••••••••••••••••••••• 71 3.14 Conclusion ••••.•.•.•••.•.•...••••••.•••.••••••••.••.•.•.••••••••••••••••••.•.•.•.••••••••••.••••• 72 CHAPTER FOUR •••••••••••••••••••••••..•••.••••••.....•.•••.••••••••••••••••••••••••••••••••••••••••••••• 74 CONSTITUTIONAL CHALLENGES ASSOCIATED WITH THE DISMISSAL OF EMPLOYEES FOR SOCIAL MEDIA-RELATED MISCONDUCT ........................ 74 4.1 Introduction. .•.••...•...••.•.••••••••••...•••••.•••.•.•.••••.•.•.•••••••••••••••••••••.••••••••• 74 4.2 Constitutional Rights Affected by the Dismissal of Employees for Social Media-Related Misconduct• ••••••••.•.•.•.•••.•.••••••••••••••••••••••••••••••••••..•• 75 4.2.1 The right to privacy under the Constitution ......................................... 75 4.2.1.1 Right to privacy under common law ................................................... 78 4.2.2 The right to freedom of expression ................................................... 84 4.2.3 The right to dignity .......................................................................... 92 4.2. 4 The right to freedom of association ................................................... 96 4.3 Conclusion •••••.•••••.••••••............................................•..........•............• 98 CHAPTER FIVE ........................................................................................... 100 ix RECOMMENDATIONS AND CONCLUSION ................................................. 100 5.1 Introduction .................................................................................. 100 5.2 Recommendations ........................................................................ 100 {a} notwithstanding the possible effects of overregulation and/o r double jeopardy, all labour-related legislation should be amended to expressly regulate the use ofs ocial media in the South African workplace ..............................................................................................1 01 {bJ the LRA and other related legislation should be amended to provide adequate penalties for social media-related misconduct •••.••.•.•.•••••••••• 103 { c} the monitoring ofs ocial media communications of employees by their employers should be carefully restricted •••••••••.•.•....•.•••.•••••••••••••. 104 { d} employers should implement clear social media policies in the workplace ..............................................................................................1 05 { e} employers must provide employee or staff training on their social media policies ........................................................................................ 107 {f} there should be a balance on employers' interests and employees' Constitutional rights to privacy, dignity, freedom of expression and freedom of association in the workplace •.•.•••.•.•••••.••••••••••.••••••••••••••••.•. 107 {g} the prohibition on social media-related misconduct must be carefully and consistently enforced •.•••••.•••••••.•••••••.•.•••••••••••••••••••••••••••. 109 5.3 Conclusion ..................................................................................... 110 BIBLIOGRAPHY ......................................................................................... 111 X CHAPTER ONE RESEARCH OUTLINE AND CONTEXT 1.1 Introduction Social media is defined as social interactions between one person and another using technology such as the internet and cell phones through any combination of words, pictures, videos, electronic mail ( email) sharing, documents or audio. 1 Social media also constitutes mobile and web-based technologies that allow people to interact by both sharing and consuming information through social media platforms or email communications. 2 For the purposes of this research, electronic communication via email is regarded as social media because employees also communicate and share information through email in the workplace. Social media communications include the use of web-based and mobile technology to make communications into an interactive dialogue between one person and another.3 For the purposes of this research, the definition of "social media-related misconduct" include the improper and/or unlawful use of social media by employees in the workplace during office hours to the detriment of their employers, employers' business or other persons. Examples of such misuse of social media could include any posting of racist, defamatory, false, controversial, derogatory, malicious and/or misleading statements on social media platforms by employees against their employers or other persons. Consequently, social media-related misconduct by employees outside the workplace or office working hours is beyond the scope of this research. There is currently no legislation that specifically defines social media-related misconduct and/or indicate whether such misconduct is treated the same or different from other types of misconduct that are enumerated in the Schedule 8 of the Code of Good Practice of Smith MC "The Interaction of Social Media and the Law and How to Survive the Social Media Revolution" 2012 New Hampshire Bar Journa/24-39. 2 Kietzmann JH, Kristopher H, McCarthy IP and Silvestre BS "Social Media? Get Serious! Understanding the Functional Building Blocks of Social Media" 2011 Business Horizons 241- 251. 3 Merriam-Webster Online Dictionary 2016 Social Media Definition http://www.merriam- webster.com/dictionary/social%20media accessed 13 June 2016 1. 1 the Labour Relations Act4 Notwithstanding the fact that employers can also violate their employees' right to privacy5 by unlawfully monitoring their social media platforms in a bid to combat social media-related misconduct, this research mainly focuses on the dismissal of employees for their misuse of social media during office working hours. In this regard, the researcher submits that a specific legislation that outlaws the misuse of social media in the South African workplace should be enacted to carefully balance the employees' Constitutional rights to privacy and freedom of expression and the protection of the employer's own rights and business. Social media platforms such as biogs, social networking and video sharing have become popular and are now present in almost every workplace.6 The abuse of social media platforms by employees has culminated in many cases of dismissals for social media-related misconduct in the South African workplace. 7 In this regard, it must be noted that the study is mainly limited to the regulation and combating of social media-related misconduct in the South African workplace during office working hours. Moreover, a detailed discussion on balancing the rights of the employee and employer when regulating social media-related misconduct in the South African workplace during office working hours is beyond the scope of this dissertation. Thus, any social media-related misconduct that is done in South Africa outside office working hours is beyond the scope of this dissertation. This research discusses the Constitutional and legislative challenges and/or problems associated with the dismissal of employees for social media-related misconduct in the South African workplace. For the purposes of this research, the regulation of social media-related misconduct is discussed mainly in terms of the LRA. There are 4 Labour Relations Act66 of 1995 (LRA) as amended by the Labour Relations Amendment Act 6 of 2014. 5 See related comments by Balule BT and Otlhogile B "Balancing the Right to Privacy and the Public Interest: Surveillance by the State of Private Communications for Law Enforcement in Botswana" 2015 Statute Law Review 1, 2, who correctly submitted that there is a general concern in many jurisdictions that the state and other persons unlawfully use surveillance systems and other measures to arbitrarily monitor private communications which in turn interferes with the affected individuals' right to privacy. 6 Lewis R 2012 Workplace Challenges Associated with Employees Social Media Use http://www.acc.com/legalresources/quickcounsel/wcawesmu.cfm accessed 12 March 2016 1. 7 Celliers FQ "The Role of and Effect of Social Media in the Workplace" 2013 N Ky L Rev 567- 592. 2 various forms of misconduct that employees can commit through social media8 in the South African workplace. In this regard, the legal consequences of such misconduct are further examined.9 Moreover, this research discusses labour-related legislation in relation to the regulation of social media in the South African workplace. The Constitutional rights to dignity, 10 privacy11, freedom of expression12 and freedom of association13 are also discussed in this research. This follows the fact that employees and other persons can easily contravene the stated Constitutional rights on social media platforms. Thereafter, possible recommendations to enhance the regulation of social media-related misconduct in the South African workplace are provided. 1.2 Background of the Research The growth of social media platforms in South Africa began in 1990 when internet access was made possible through computers by the South African government.14 The abuse of social media by employees has culminated into various social media- related misconduct in the South African workplace. 15 As a result, the social media- related misconduct has resulted in various challenges for both employees and employers in South Africa. 16 In South Africa, the employer-employee relationship is mainly regulated by the LRA. The LRA was enacted pursuant to the Constitution, which states that national legislation must be enacted to regulate employment issues.17 In today's world, the most effective, efficient and immediate way of conveying one's ideas and thoughts is through the internet. 18 There is an estimated number of 11.8 million Facebook users, 7.2 million users of YouTube and 6.6 million 8 Davey R "Dismissal for Social Media Misconduct" 2012 De Rebus 1-94. 9 Celliers 2013 N Ky L Rev 575. 10 Section 10 of the Constitution of the Republic of South Africa, 1996 (Constitution). 11 Section 14 of the Constitution. 12 Section 16 of the Constitution. 13 Section 18 of the Constitution. 14 Van Eeden, Taljaard C and Borchardt S 2013 Democracy and the Media Go Hand in Hand http://www. voices-of-theworld .org/politics-and-economy/ democracy-and-the-media-go-hand- in-hand accessed 10 February 2016 1. 15 Naito A "A Fourth Amendment Status Update: Applying Constitutional Privacy Protection to Employees' Social Media Use" 2012 U. Pa. J. Const. L 849-883. 16 Naito 2012 U. Pa. J. Const. L 851. 17 Section 23 of the Constitution. 18 Braithwaite v McKenzie 2015 (1) SA 270 (KZP). 3 users of other social media platforms in South Africa. 19 This could suggest that the influence of social media on the modern society is growing. These technological advances have also influenced the conduct of employees in the workplace. 20 Consequently, companies run the risk of vicarious liability for discrimination, harassment and defamation on social media where an employee's conduct occurs during the course and scope of his or her employment.21 In the past years, several employees were dismissed for their comments on social media platforms. 22 Consequently, the use of social media has culminated into new Constitutional and legislative challenges for both employees and employers in the South African workplace. 23 The LRA provides guidelines for dismissal for general misconduct in the workplace. 24 However, the LRA does not provide for social media-related misconduct regulation in the South African workplace. 25 Moreover, the Basic Conditions of Employment Act}6 does not provide such employees with the same right in respect of social media conduct. 27 Nonetheless, in terms of the BCEA, every employee has the right to discuss his or her conditions of employment with his fellow employees, employer or any other person. 28 In terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act,29 any person may intercept any communication if he or she is a party to the communication, unless such communication is intercepted for purposes of committing an offence.30 The RICA further provides that any person may authorise or give anyone else written 19 Fourie LE The Role of Social Media as an Information Source in the Decision Making of Students when Selecting a University (Business Management-dissertation University of South Africa 2015) 5. 20 Davey 2012 De Rebus 80. 21 Davey 2012 De Rebus 80. 22 Vries M and Moosa N "The Laws Around Social Media: Student Feature" 2015 Without Prejudice 1-92. 23 Lewis 2012 http:ll www.acc.comllegalresourceslquickcounsel/wcawesmu.cfm accessed 12 March 2016 1. 24 Item 7 Schedule 8 Code of Good Practice: Dismissal of the LRA. 25 Item 7 Schedule 8 Code of Good Practice: Dismissal of the LRA. 26 Basic Conditions of Employment Act 11 of 2002 ( BCEA). 27 Potgieter M Social Media and Employment Law(Juta Cape Town 2014) 43. 28 Section 78(1)(b) of the BCEA. 29 Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA). 30 Section 4(1) of the RICA. 4 permission to monitor or intercept any data communication unless it is for the purposes of unlawful conduct. 31 Therefore, if an employee's communication is intercepted without his or her prior consent, this could constitute a violation of his or her right to privacy. 32 In other words, if employers are allowed to monitor private communications of their employees without their prior consent, that could give rise to an infringement or violation of such employees' right to privacy.33 Nonetheless, no provision in the RICA expressly provide for the regulation of social media-related misconduct in the South African workplace. 34 In Smith v Partners in Sexual Health (non-profit), 35 an organisation's chief executive officer accessed an employee's private e-mail account while she was on leave and found e-mails between her and former employees as well as e-mails between the employee and persons outside the organisation which referred to internal matters of the business of the employer. The employer initially gained access to the employee's account accidentally but subsequent access was intentional. The employee was charged with a number of offences, including bringing the employer's name into disrepute. In Smith's defence at a disciplinary inquiry, she contended that the employer accessed her emails in violation of her right to privacy and in contravention of the RICA. The Commission for Conciliation, Mediation and Arbitration36 found that the intentional access on the second occasion contravened the RICA and the evidence obtained through this access was inadmissible because of an infringement of the employee's Constitutional right to privacy. The CCMA held that the employee's dismissal for social media-related misconduct was procedurally and substantively unfair. The Employment Equity Act 37 does not expressly provide for the regulation of social media-related misconduct in the South African workplace. 38 The Constitution states 31 Section 5(1) of the RICA. 32 Potgieter Social Media and Employment Law 88. 33 Potgieter Social Media and Employment Law 88. 34 Potgieter Social Media and Employment Law 88. 35 Smith v Partners in Sexual Health (non-profit) (2011) 32 IU 1470 (CCMA). 36 The Commission for Conciliation, Mediation and Arbitration (CCMA). 37 Section 6(1) of the Employment Equity Act 55 of 1998 (EEA). In this regard, section 187(1)(f) read with (2) of the LRA would have been the correct provision to deal with dismissals based 5 that everyone has the right to freedom of expression.39 Freedom of expression includes: (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.40 However, the right to freedom of expression is limited in terms of the Constitution.41 There is a close connection between the right to freedom of expression and the right of human dignity in that one's right to dignity may be violated when an employee or another person makes derogatory remarks on social media platforms against such person.42 These rights closely relates to social media as their contravention occur on social media platforms.43 In Le Roux and Others v Dey,44 O' Regan J submitted that the right to freedom of expression could not trump the right to human dignity.45 However, both the right to human dignity and the right to freedom of expression should receive equal protection.46 The court held that freedom of expression is not above any other Constitutional rights.47 Although, the case does not directly deal with social media-related misconduct, it deals with the contravention of rights on social media platforms. The Constitution guarantees an individual's right to dignity,48 privacy,49 freedom of expression50 and the right to freedom of association. 51 However, these rights are easily contravened on social media platforms in South Africa. Moreover, these rights are limited in terms of the Constitution.52 This entails that such rights are not on social media related discriminatory grounds. However, social media-related misconduct is not expressly prohibited or treated as a misconduct under the LRA. 38 Potgieter Social Media and Employment Law 88. 39 Section 16(1) of the Constitution. 40 Section 16(1) of the Constitution. 41 Section 36 of the Constitution. 42 Dahms-Jansen L 2015 Social Media in the Workplace Balancing Rights to Privacy with Freedom of Expression http://Bowman Gilfillan.co.za/FileBrowser/ContentDocuments/Social accessed 10 April 2016 1. 43 Davey 2012 De Rebus 80. 44 Le Roux and Others v Dey2011 (3) SA 274 (CC) (Le Roux case). 45 Le Roux case 45. S v Mamabolo (E TV and Others Intervening) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 441 CC 41 (Mamabolo case). 46 Le Rouxcase 45 and Mamabolocase 41. 47 Le Rouxcase 45 and Mamabolocase 41. 48 Section 10 of the Constitution. 49 Section 14 of the Constitution. 50 Section 16 of the Constitution. 51 Section 18 of the Constitution. 52 Section 36 of the Constitution. 6 absolute since the limitation clause restricts them.53 The limitation clause in the Constitution states that rights in the Bill of Rights may be limited only in terms of the law of general application.54 The limitation clause also states that rights in the Bill of Rights may be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. 55 The Constitution states that everyone has an inherent right to dignity and such right should be respected and protected. 56 In Cliff v Electronic Media Network (Pty) Ltd,57 Mr Cliff's position as a judge in the television programme called South African Idols, 58 was terminated after he posted a tweet on a social media platform, namely Twitter. The tweet was construed as racist, or in support of racism. 59 The case was brought on an urgent basis because of M-net's intention to terminate their relationship with Mr Cliff as a judge for the 2016 Idols season. M-net later dismissed Mr Cliff. Thereafter, the court ordered the reinstatement of Mr Cliff to his job as the remarks that he had made had nothing to do with racism. This case usefully reveals that innocent comments made by employees on social media could erroneously give rise to their dismissal for social media-related misconduct in the South African workplace. Every individual has the right to privacy including the right not to have their person or home searched,60 their property searched,61 their possessions seized,62 or the privacy of their communications infringed.63 The right to privacy is supported by the 53 Woolman S & Botha H 2006 Limitations http://www.chr.up.ac.za/chr_old accessed 12 May 20161. 54 Section 36(1) of the Constitution. 55 Section 36(1) of the Constitution. 56 Section 10 of the Constitution. 57 Cliff v Electronic Media Network (Pty) Ltd [2016] 2 All SA 102 (GJ) ( Cliff case). 58 The South African Idols is a television show on the South African television network M-Net, based on the popular British show Pop Idol. The show has contests to determine the best singer in South Africa. 59 Cliff case 1, which states that "the beginning of the breakdown in relations between Cliff and M-Net was a racist and derogatory statement by one Penny Sparrow on her Facebook page, in which she referred to black people as monkeys". This was met with widespread anger and outrage and immediately sparked a public outcry, particularly on social media. 60 Section 14(a) of the Constitution. 61 Section 14(b) of the Constitution. 62 Section 14(c) of the Constitution. 63 Section 14( d) of the Constitution. 7 Protection of Information Act/4 which stipulates that one's personal information is important.65 This entitles both the employee and employer the right to protect and control their personal information. The POPI states that the processing of information should be lawful and/or in a manner that does not infringe upon the data subject. 66 However, the POPI does not clearly provide how the conduct of employees on social media in the workplace should be regulated. 67 In Bernstein v Bester,68 Justice J Ackerman held that a person's right to privacy may be easily violated when they move public places such as their workplace69 although privacy is recognised in a personal realm. 70 The employee's right to privacy should be safeguarded against intrusions by the employer.71 This will prevent employees from losing their privacy as they enter the workplace.72 1.3 Statement of the Problem Currently, the South African workplace has no specific legislation that regulates the misuse of social media.73 The current regulatory framework as contained in the LRA and other related legislation is not adequate enough to combat the misuse of social media in the South African workplace. For instance, the LRA does not define social media-related misconduct. Moreover, the only examples of misconduct found in the LRA include gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.74 Thus, the Code of Good 64 Protection of Personal Information 4 of 2013 (POPI). The POPI ensures that all South African institutions conduct themselves in a responsible manner when collecting, processing, storing and sharing another entity's personal information. 65 Section 2 of the POPI. 66 Chapter 9 of the POPI. 67 HR Works 2012 Social Media in the Workplace http://www.hrworks.co.za/articles/225-social- media-in-the-workplace accessed 12 March 2016 1. 68 Bernstein v Bester 1996 (2) SA 751 (CC) (Bernstein case). 69 Bernstein case 67. 70 Bernstein case 67. 71 Antoniades L Social Networks in the Workplace (LLM-dissertation University of Pretoria 2015) 10. 72 McGregor M "The Right to Privacy in the Workplace: General Case Law and Guidelines for Using Internet and E-mail" 2004 SA Mere LJ 638-650. 73 Davey 2012 De Rebus 80. 74 Item 3(4) Schedule 8 Code of Good Practice: Dismissal of the LRA. 8 Practice does not expressly indicate whether social media-related misconduct should be treated as any other general misconduct that is outlawed in the LRA. This Code also fails to provide any guidelines on the regulation of social media-related misconduct in the South African workplace during office working hours. The LRA also fails to indicate whether social media-related misconduct is treated the same or different for other types misconduct that are enumerated in its Code of Good Practice as stipulated in Schedule 8 of the LRA. Thus, it is very difficult for employees who are dismissed for social media-related misconduct to rely on sections 187 and 188 of the LRA. This has given rise to several unconstitutional and unlawful dismissals of employees as well as the infringement of the employer's rights in the South African workplace during office working hours. 75 In addition, there is no other South African labour statute that provides specific guidelines on the regulation of social media in the workplace. This has culminated into various problems such as the unfair dismissal of employees for social media-related misconduct on the one hand as well as the rampant misuse of social media by employees to the detriment of their employers in the South African workplace to date.76 Furthermore, the frequent use of social media by employees has also increased the Constitutional conflicts between employers and their employees in the South African workplace. Consequently, several employees have been dismissed for their alleged defamatory or incriminating information posts on social media platforms in the South African workplace during office working hours.77 In this regard, a number of cases of employees who faced dismissal for their alleged social media-related misconduct in the workplace illustrates the need for a specific social media legislation in South Africa and/or the need to amend the current labour laws to specifically regulate such misconduct. 78 Such legislation should adequately provide the regulation of social 75 Davey 2012 De Rebus 80. 76 Davey 2012 De Rebus 80. 77 Du Toit 2016 Social Media: Guidelines on the Policy for Employees using Social Media for Non-Business Purposes http://www.labourguide.co.za/most-recent/1358 accessed 14 July 20161. 78 Raitt R 2015 Navigating the Grey Areas around Social Media Law http://www.mediaupdate.co.za/socialmedia/78602/navigating-the-grey-areas-around-social- media-law accessed 10 February 2016 1. 9 media in the South African workplace and the penalties to be imposed on the offenders.79 The legislation should also define what can be described as a valid reason to dismiss an employee for social media-related misconduct in South Africa.80 Concisely, the research exposes the lacunae in the current labour laws, which do not expressly prohibit social media-related misconduct in the South African workplace. This gives rise to a host of problems such as the unlawful dismissals of employees, infringement of employees' rights to privacy, dignity, freedom of expression and freedom of association as well as the infringement of the employer's own interests. It is hoped that such legislation will combat unlawful dismissals of employees for social media-related misconduct in South Africa.81 1.4 Aims and Objectives 1.4.1 Aims This research examines the problems associated with the dismissal of employees for social media-related misconduct in the South African workplace. The research also examines the manner in which social media-related misconduct cases are dealt with by the South African courts. Additionally, the research explores the adequacy of the regulation of social media-related misconduct in South Africa. 1.4.2 Objectives In order to achieve the aims of this research, the researcher: (a) analyses the challenges associated with the dismissal of employees for social media-related misconduct in the South African workplace; and (b) examines the relevant case law where the courts granted the dismissal of employees for social media-related misconduct. ( c) provides recommendations on how to combat social media-related misconduct in the South African workplace during office working hours. 79 Davey 2012 De Rebus 80. 80 Davey 2012 De Rebus 80. 81 Raitt 2015 http://www.mediaupdate.co.za/socialmedia/78602/navigating-the-grey-areas- around-social-media-law accessed 10 February 2016 1. 10 1.5 Rationale for the study This research examines the violation of the Constitutional rights of employees and employers because of social media-related misconduct in the South African workplace. The research also analyses the legislative challenges that are associated with social media-related misconduct in the South African workplace. This follows the fact that there are no clear guidelines or provisions in the LRA and other related legislation on the regulation of social media-related misconduct in the South African workplace during office working hours. The LRA should be amended to provide clear guidelines and/or provisions that prohibit the misuse of social media by employees in the South African workplace during office working hours. Accordingly, this research exposes the need for enacting adequate legislation that specifically deals with social media-related misconduct to curb arbitrary social media-related dismissals of employees in the South African workplace during office working hours. Although the research does not provide a specific hypothesis, the researcher hopes that such specific legislation will enhance the combating of social media-related problems in the South African workplace. 1.6 Limitation of the study This research mainly focuses on the dismissal of employees for social media-related misconduct under the LRA. This research is limited to social media-related misconduct in the workplace during working hours, therefore any other misconduct in the LRA is beyond the scope of this research. Consequently, reference to other related legislation such as the EEA, BCEA, PEPUDA, RICA and the POPI was made where necessary, for comparative purposes. The research mainly deals with social media-related misconduct during working hours in the South African workplace. In other words, this research mainly focuses on social media-related misconduct or the improper and/or unlawful use of social media by employees in the workplace during office hours to the detriment of their employers, employer's business or other persons. Consequently, social media-related misconduct by employees outside the workplace or office working hours is beyond the scope of this research. The research also focuses on the employer and employee's Constitutional rights to dignity, 11 privacy, freedom of expression and freedom of association. This follows the fact the aforesaid rights are easily affected by social media-related misconduct in South Africa. 82 The researcher does not do a comparative study of countries that have relatively good social media-related laws such as China83 and the United States of America84 because of space and time limitations to the dissertation. In addition, the researcher does not provide a specific heading for hypothesis due to the same reason. Although the research does not provide a specific heading for literature review because of space and time constraints, the researcher employed various primary and secondary sources that are relevant to the topic in the entire dissertation. A detailed discussion on balancing the rights of the employee and employer when regulating social media-related misconduct in South African workplace during office working hours is beyond the scope of this dissertation. Lastly, the research mainly discusses social media-related misconduct in the context of labour law rather delict and/or other related fields. 1.7 Research Methodology The research employs a qualitative research method. For the purposes of this research, various primary sources such as legislation and secondary sources such as relevant journal articles, textbooks and case law that are relevant to the topic are utilised in the entire dissertation. Notably, primary sources are original sources that the information is initially based upon.85 Secondary sources explain, interpret and analyse primary sources.86 These employed sources provide the relevant evidence and background knowledge for this research.87 Such primary and secondary sources 82 Singh BL The South African Employer's Regulation of Internet Misuse in the Workplace (LLM- dissertation University of KwaZulu-Natal) 31. 83 Chin YC 2013 Regulating Social Media http://journalism.hkbu.edu.hk/doc/Regulating_social- Media.pdf accessed 21 March 2016 1. 84 Bertot JC, Jaeger PT and Hansen D "The Impact of Polices on Government Social Media Usage: Issues, Challenges, and Recommendations" 2011 Government Information Quarterly 30-40. 85 University of KwaZulu-Natal Library 2012 South African and Foreign Sources http://library.ukzn.ac.za/content.php?pid=446457 accessed 15 May 2016 1. 86 University of KwaZulu-Natal Library 2012 http://library.ukzn.ac.za/content.php?pid=446457 accessed 15 May 2016 1. 87 University of KwaZulu-Natal Library 2012 http://library.ukzn.ac.za/content.php?pid=446457 accessed 15 May 2016 1. 12 were accessed from the library and the Internet.BB In this regard, the dates available in the footnotes and bibliography are the dates on which the researcher accessed the websites provided. For the purposes of this research, the Potchefstroom Electronic Law Journal referencing style is used as it is the referencing style required for use by the university. 1.8 Structure of the dissertation This research has five chapters as indicated below: Chapter One outlines the background of study, statement of the problem, aims and objectives, rationale of the study, limitation of the study and the research methodology. Chapter Two analyses the dismissals of employees because of social media-related misconduct in South Africa. The chapter also discusses various forms of misconduct that can be committed through social media by employees as well as the legal consequences for such misconduct. Chapter Three outlines the legislative challenges that are associated with the dismissal of employees for social media-related misconduct in the South African workplace. Chapter Four outlines and analyses the Constitutional challenges for social media- related misconduct in the South African workplace. Chapter Five provides conclusions and recommendations on how to combat social media-related misconduct in the South African workplace. 88 University of KwaZulu-Natal Library 2012 http://library.ukzn.ac.za/content.php?pid=446457 accessed 15 May 2016 1. 13 CHAPTER TWO DISMISSAL ON THE BASIS OF SOCIAL MEDIA-RELATED MISCONDUCT 2.1 Introduction Misconduct occurs when an employee culpably disregards the rules for the workplace that are given or indicated by express or implied terms of that employee's employment contract and the employer's disciplinary code.89 Misconduct is the most common justification for employee dismissals in South Africa. 90 Dismissals for misconduct occur when employees are deemed to have breached a material term of their employment contract by the employer.91 Furthermore, an employer may dismiss employees for misconduct when such employees have caused a hostile working environment for the employer and other employees.92 The Labour Relations Acf3 provides three grounds that may render the termination of employment legitimate.94 Such grounds include the conduct of the employee, the capacity of the employee, and the operational requirements of the employer's business.95 Dismissal on the ground of negative or unlawful conduct of the employee is generally dismissal for misconduct.9 6 Dismissal of such employees is because of their contravention of disciplinary rules and/or refusing to follow instructions of their employer.97 Furthermore, the dismissal relating to unlawful conduct comes into effect because of an employee's unconventional behaviour that compromises the employment relationship with the employer.98 Dismissal relating to the capacity of employees refers to instances where employees are incapable to perform their 89 Grogan J Dismissal 5th ed (Juta Cape Town 2013) 143. 90 Grogan Dismissal 142. 91 Grogan Dismissal 142. 92 Grogan Dismissal 142. 93 Labour Relations Act66 of 1995 (LRA). 94 Item 2(2) Schedule 8 Code of Good Practice: Dismissal of the LRA. 95 Item 2(2) Schedule 8 Code of Good Practice: Dismissal of the LRA. 96 Grogan Dismissal79. 97 Grogan Dismissa/79. 98 Grogan Dismissa/79. 14 workplace duties for reasons beyond their control such as being physically incapable to perform a task due to injury or sickness.99 Dismissal for operational requirements of the employer occurs when an employee's employment post becomes redundant to the needs of the employer's business. 100 The operational requirements are effected for various reasons such as economic downturn or financial challenges of the employer. 101 In assessing the fairness of the dismissal, the employer or judges and arbitrators should seek to answer the following questions: a) was there contravention of any rule regulating conduct in the workplace?; b) was such rule reasonable and valid?; c) was the employee aware of the rule or reasonably expected to have been aware of it?; and d) was dismissal the appropriate sanction for the contravention of the rule?102 This chapter analyses the dismissal of employees for their social media-related misconduct. The procedural and substantive fairness for such dismissal is also discussed in accordance with the South African employment laws. Moreover, this chapter analyses the various misconduct that may be committed through social media and their legal implications. This is done to expose the need for a robust regulatory prohibition on social media-related misconduct in the South African workplace. 2.2 Definition of key terms and concepts As indicated above, 103 misconduct occurs when an employee culpably disregards the rules for the workplace that are given or indicated by express or implied terms of that employee's employment contract and the employer's disciplinary code. 104 The definition of misconduct does not adequately outline what a misconduct is for the 99 Grogan Dismissa/80. 100 Grogan Dismissa/80. 101 Grogan Dismissa/79. 102 Item 7 Schedule 8 Code of Good Practice: Dismissal of the LRA. 103 See paragraph 2.1 above. 104 Grogan Dismissal 143. 15 purposes of social media-related misconduct in South Africa. However, the stated definition of misconduct does not cause confusion, as it is relatively clear and can be understood by a layperson. This could suggest that employers and the relevant courts can consistently apply the definition of misconduct. The definition of "Social media-related misconduct" include the improper and/or unlawful use of social media by employees in the workplace during office hours to the detriment of their employers, employers' business or other persons. "Social media" is defined as social interactions between one person and another using technology such as the internet and cell phones through any combination of words, pictures, videos, email sharing, documents or audio.105 Social media also constitutes mobile and web-based technologies that allow people to interact by both sharing and consuming information through social media platforms or email communication. 106 The definition is adequate as it fully describes what social media constitutes. "Social media communication" is defined as the use of web-based and mobile technology to make communications into an interactive dialogue between one person and another. 107 The definition of social media communication is adequate because it clearly stipulates how and who interacts through social media communication. Nonetheless, this definition does not clearly state instances or examples where employees use social media communication in the workplace. "Social media misconduct" occurs, inter alia, where employees post derogatory comments on social media platforms that are published to a wide audience. Such conduct may result in the dismissal of employees for social media-related misconduct in the South African workplace. 108 The definition of social media 105 Smith MC "The Interaction of Social Media and the Law and How to Survive the Social Media Revolution" 2012 New Hampshire Bar Journal24-39. 106 Kietzmann JH, Kristopher H, McCarthy IP and Silvestre BS "Social Media? Get Serious! Understanding the Functional Building Blocks of Social Media" 2011 Business Horizons 241- 251. 107 Merriam-Webster Online Dictionary 2016 Social Media Communication http://www.merriam- webster.com/dictionary/social%20media accessed 13 June 2016 1. 108 Davey R 2016 Off Duty Misconduct in the Age of Social Media http://www.golegal.co.za/off- duty-misconduct-in-the-age-of-social-media/ accessed 24 February 2016 1. 16 misconduct is not adequate. For instance, this definition does not explain or indicate whether derogatory comments could include racial, prejudicial and defamatory comments by employees on social media. Furthermore, the definition of social media-related misconduct should outline all the consequences of social media- related misconduct in the South African workplace. "Workplace" means the place or places where the employees of an employer work. 109 The workplace definition is not adequate. This definition should be revised and broadened to indicate the various types of workplace where employees are required to provide services in relation to their employment contracts. For the purposes of this research, the term "workplace" refers to a place of employment for employees where they work or conduct their duties during normal office hours. Given this background, social media-related misconduct by employees outside the workplace or office working hours is beyond the scope of this research. "Dismissal" entails that an employer has terminated a contract of employment of an employee with or without notice. 110 The definition of dismissal is adequate as it is outlined in the LRA. Dismissal also occurs when an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or does not renew it. 111 For instance, where the employer refuses to allow an employee to resume work after she: (a) took maternity leave; 112 or (b) was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date of the birth of her child. 113 Dismissal also occurs when an employer who dismissed employees for the same reasons offers to re-employ one of them but refuses to re-employ other employees.114 Dismissal also occurs when an employee terminates a contract of employment with or without notice because the new employer provides the employee with conditions or circumstances at work that are 109 Section 213 of the LRA. 110 Section 186( 1) (a) of the LRA. 111 Section 186(1)(b) of the LRA. 112 Section 186(1)(c)(i) of the LRA. 113 Section 186(1)(c)(ii) of the LRA. 114 Section 186(1)(d) of the LRA. 17 less favourable to the employee than those provided by the old employer. 115 The definition of dismissal need not be hindered as it is outlined in all instances how a dismissal may occur. "Termination of employment" occurs where a contract of employment is terminated at the instance of a party to the contract that has to be on notice. 116 The definition is not adequate because an employee may face dismissal without prior notice from the employer. Furthermore, an employee may recuse himself or herself from his or her duties without informing the employer, which is a form of termination of employment. The definition should be amended to indicate that termination of employment can be effected without notice either from the employer or the employee. "Social media abuse" occurs, inter alia, where employees use social media inappropriately by posting material that may be defamatory, racist and prejudicial to the employer and other persons. 117 The definition of social media abuse is adequate as it provides ways in which employees could abuse social media without taking into consideration the consequences of their social media comments or posts. Employees should take responsibility for their social media abuse and they must face discipline or sanctions. The "employer" is defined as a legal entity that controls and directs employees to perform their duties in the workplace in terms of the express or implied terms of the employment contract. The employer is obliged to pay remuneration to employees. 118 The definition of an employer is adequate since it states the meaning of the employer and the obligations that could occur under the employment contract. The definition does not need amendment, as it does not cause any confusion. On the other hand, the "employee" is any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive 115 Section 186(1)(() of the LRA. 116 Section 37(1) of the Basic Conditions of Employment Act 75 of 1998 (BCEA). 117 Personnel 2016 Computer Misuse http://www.personneltoday.com/ hr-practice/computer- misuse/accessed 10 September 2016 1. 118 Gelms J "High-Tech Harassment: Employer Liability under Title VII for Employee Social Media Miscoduct" 2012 Wash. L. Rev249-279. 18 a remuneration from the employer. 119 The definition of an employee is clear and adequate. For instance, the definition satisfactorily outlines the employee's duties in the workplace. An "employment relationship" is defined as the legal link between employers and employees where reciprocal rights and obligations are created between them. 120 The definition of the employment relationship is adequate because it gives clear indication of what an employment relationship entails. The employment relationship cannot exist without the reciprocal rights and obligations from employers and employees because such rights and obligations assist in carrying on of the business of the employers to benefit both the employers and employees. 2.3 The procedural and substantive fairness ofs ocial media-related dismissals under the South African employment laws 2.3.1 The Labour Relations Ad The dismissal of employees for general misconduct should be procedurally and substantively fair. 121 Dismissal of an employee for general misconduct would be unfair if no procedure for substantive fairness was followed. 122 Substantive fairness entails that a termination of employment by the employer should be reasonable. 123 A reasonable dismissal could occur when an employee had contravened a rule contained in the disciplinary code of the employment contract of the employer. Therefore, such employees can be dismissed for general misconduct in the South African workplace. 124 However, there are instances where no mention of an existing social media policy or code of conduct entailing that employees should not express opinions on social media platforms about his working conditions was made, but the 119 Section l(a) of the BCEA. 120 International Labour Organisation 2016 Employment Relationship http://ilo.org/ifpdial/areas- of-work/labour- law/WCMS_CON_T XT_ IFPDIAL_EMPREL_EN/lang--en/index.htm accessed 16 March 2016 1. 121 Section 188 of the LRA. 122 Section 188(2) of the LRA. 123 Commission for Conciliation, Mediation and Arbitration 2016 The Disciplinary Procedure for Misconducthttp://www.labourguide.co.za/discipline-dismissal/642 accessed 14 June 2016 1. 124 Item 7 Schedule 8 Code of Good Practice: Dismissal of the LRA. 19 employee was dismissed. 125 The dismissal of an employee for misconduct would be unfair if the employee did not breach any disciplinary codes. 126 Failure by the employer to give reasons for dismissing an employee for social media-related misconduct would be unfair. 127 Furthermore, the dismissal of an employee for social media-related misconduct would be unfair if it infringes the fundamental rights of that employee. 128 Procedural fairness generally refers to a disciplinary hearing held to allow the employee to state his or her defence.129 The LRA does not provide for procedural and substantive fairness for social media-related misconduct. The LRA should therefore, be amended to enact provisions for procedural and substantive fairness for social media-related misconduct in the South African workplace. 2.3.2 The Employment Equity Act The Employment Equity Act30 provides that every employer must take the necessary steps to eliminate any form of discrimination. Such steps could include the adoption of an anti-discrimination policy in the workplace by all employers. 131 The employer should further prohibit unfair discrimination directly or indirectly against any employee based on the grounds such as race, gender, sex, pregnancy and other grounds.132 If a dismissal constitutes any form of discrimination, the dismissal would be both procedurally and substantively unfair133 unless the dismissal is based on an inherent requirement of the particular job or on age where an employee has reached the normal or agreed retirement age. 134 In this regard, other tests and standards in terms of the Code of Good Practice of the LRA must be considered before the dismissal is regarded as procedurally and substantively unfair. The employer must 125 Beaurain v Martin NO & Others (1) (2014) 35 IU 2443 (LC) (Beaurain case). 126 Beaurain case 5. 127 Item 2(4) Schedule 8 Code of Good Practice: Dismissal of the LRA. 128 Item 2(3) Schedule 8 Code of Good Practice: Dismissal of the LRA. 129 Mugabe K 2014 Substantive and Procedural Fairness in Employment Law http://www.polity.org.za/article/substantive-and-procedural-fairness-in-employment-law- 2014-07-16 accessed 19 May 2016 1. 130 The EmploymentEquityAct55 of 1998 (EEA). 131 Section 5 of the EEA. 132 Section 6 of the EEA. 133 Section 6 of the EEA read with section 187(1) of the LRA; Adonis T The Employment and Promotion Process: Legal Regulation and Practice (MPhil -dissertation University of cape Town 2015) 28. 134 Section 188(2) of the LRA. 20 not discriminate the employee based on his or her political views and/or sexual orientation that is posted on social media platforms. 135 The courts must discourage employee dismissals based on their sexual orientation or political views obtained on social media platforms. 136 Such dismissals would be discriminatory and unfair on the affected employee. 137 However, the enforcement of employee rights in this regard is difficult since the EEA does not make any provision for procedural and substantive fairness in respect of employee dismissals for social media-related misconduct. 2.3.3 The Basic Conditions of Employment Act The BCEA provides that a contract of employment can be terminated when a party to the contract is notified of the termination of his or her employment contract. 138 Failure to notify the employee of the termination of the employment contract will constitute an unfair dismissal. 139 If a dismissal for social media-related misconduct is effected without prior notice, it would be a substantively unfair dismissal.140 Employees may use social media platforms to discuss their working conditions. 141 The dismissal for social media-related misconduct would be unfair if employees' communications discussed such conditions bona fide. 142 The BCEA does not provide how procedural and substantive fairness should be considered in respect of dismissals for social media-related misconduct in the South African workplace. In this regard, it is submitted that the BCEA should be amended to clearly provide adequate provisions for social media-related misconduct dismissals in the South African workplace. 135 Celliers FQ "The Role and Effect of Social Media in the Workplace" 2013 N Ky L Rev 567-592. 136 Celliers 2013 N Ky L Rev 579. 137 Celliers 2013 N Ky L Rev 579. 138 Section 37(1) of the BCEA. 139 Adonis The Employment and Promotion Process 28. 140 Davey R "Dismissals for Social Media Misconduct" 2012 De Rebus 1-94. 141 Potgieter M Social Media and Employment Law(Juta Cape Town 2014) 88. 142 Potgieter Social Media and Employment Law 88. 21 2.3.4 The Protection of Equality and Prevention of Unfair Discrimination Act The Protection of Equality and Prevention of Unfair Discrimination Acf 3 4 states that no person may unfairly discriminate against any other person144 on the grounds of race, 145 gender146 and disability. 147 If it is established that an employer unfairly discriminated an employee and subsequently dismissed the employee for social media-related misconduct, such dismissal will be substantively and procedurally unfair. 148 The PEPUDA also does not have any provision for procedural and substantive fairness in respect of social media-related misconduct dismissals in the South African workplace. Accordingly, the PEPUDA should be amended to enact adequate provisions for procedural and substantive fairness in respect of social media-related misconduct dismissals in the South African workplace. 2.4 Problems Associated with Social Media Communications 2. 4.1 Liability for Innocent Statements on Social Media Paul Chambers was amongst the first employees who abused his social media platform stating that: "Crap. Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky-high! ". 149 This case illustrates that any social media post, even one intended as a joke, may have far-reaching consequences on the employee concerned. The consequence that may result could be dismissal for social media-related misconduct and reputational damage to the name of the employer. Chambers alone did not feel this and other related consequences. The Crown Prosecution Services was accused of wasting 143 The Protection of Equality and Prevention of Unfair Discrimination Act4 of 2000 (PEPUDA). 144 Section 6 of PEPUDA. 145 Section 7 of PEPUDA. 146 Section 8 of PEPUDA. 147 Section 9 of PEPUDA. 148 Davey 2012 De Rebus 80. 149 Davey R 2015 Dismissal for Social Media-Related Misconduct http://BowmanGilfillan.co.za/dismissal-for-social -media-related-misconduct accessed 12 April 20161. 22 public funds. 150 The district judge convicted and fined Chambers for posting derogatory comments on his social media platform. Furthermore, Chambers' appeal was dismissed on the basis that Chambers' electronic communication was menacing and that the airport staff were concerned by the derogatory comments. The Crown Prosecution Services was also accused of wasting public funds for convicting Chambers for two and a half years for what was considered as a joke by Chambers and his legal representative. In this regard, the senior prosecutor issued guidelines stipulating how posts on social media platforms should be dealt with. 151 Recently, in South Africa, an employee (Carmen Hartmann) was dismissed for social media-related misconduct. 152 Hartmann (an employee Netcare Linksfield Hospital) attacked President Jacob Zuma on social media, after his wife was admitted at the hospital for a medical procedure. 153 The employee breached the health profession rules by revealing the details of the medical treatment of Zuma's wife without the patient's consent. The employer stated that the employee had breached the Code of Practice of the Healthcare World, contravened legislation, company policies and that her conduct was contradictory to the values of commitment to maintaining confidentiality of patients. The employee was subsequently dismissed for social media-related misconduct. Although Hartmann's conduct was not expressly prohibited in the LRA Code of Good Practice, it is submitted that since Hartmann discussed the internal issues of her workplace on social media outside the office working hours, her dismissal for social media-related misconduct and contravening the Code of Practice of the Healthcare World was fair and justifiable. 150 Davey 2015 http://BowmanGilfillan.co.za/dismissal-for-social-media-related-misconduct accessed 12 April 2016 1. 151 Davey 2015 http://BowmanGilfillan.co.za/dismissal-for-social-media-related-misconduct accessed 12 April 2016 1. 152 Malefane M 2017 Nurse Fired over Zuma and Wife Facebook Rant http://www.sowetanlive.co.za/ news/2017 /03/07 /nu rse-fired-over-zuma-and-wife-facebook- ra nt accessed 08 March 2017 1. 153 Malefane 2017 http://www.sowetanlive.co.za/news/2017/ 03/07/ nurse-fired-over-zuma-and- wife-facebook-rant accessed 08 March 2017 1. 23 Employees share various information on social media platforms and such information is seen by large numbers of people at a time. 154 One of the problems associated with social media posts is that many employees are ignorant of, or do not consider the consequences of their posts. 155 The statements made on social media platforms by employees, for instance, on Facebook may constitute an unlawful conduct when employees post derogatory comments about the employer and other employees.156 For instance, employers can suspend their employees for inappropriate, racist or insensitive social media posts. 157 Such statements may also warrant disciplinary sanctions such as dismissals against the offenders.158 In this regard, if an employee face dismissal or suspension for their inappropriate, racist or insensitive social media posts, such dismissal will be fair and justifiable. In Cliff v Electronic Media Network (pty) Ltd,159 Mr Cliff was released from his duty on the Idols show160 for commenting during the Penny Sparrow race debacle. 161 Cliff allegedly tweeted that people did not understand freedom of speech.162 This led other people to make assumptions that he supported Sparrow's right to label black beachgoers as monkeys. Cliff lodged an urgent application in the High Court in Johannesburg163 and M-Net was ordered to re-instate him. 164 This case clearly shows that an employee may be suspended for exercising his or her Constitutional right to freedom of expression on social media platforms. Put differently, Cliff was dismissed 154 Hoy JS Employee Behaviour in Social Media (Master of Business Administration University of Pretoria 2012) 2. 155 Vries M and Moosa N "The Laws Around Social Media: Student Feature" 2015 Without Prejudice 1-94. 156 Davey 2015 http://www.golegal.co.za/off-duty-misconduct-in-the-age-of-social-media/ accessed 24 February 2016 1. 157 Shange N 2016 Yes, Your Boss Can Fire You for Social Media Posts http:www.News24.com/ SouthAfrica/News/yes-your-boss-can-fire-you-for-social-media-posts-attorney-20 accessed 10 March 2016 1. 158 Davey 2012 De Rebus 80. 159 Cliff v Electronic Media Network (Pty) Ltd [2016] 2 All SA 102 (GJ). See the introduction in paragraph 1.2 in Chapter One of this dissertation. 160 The South African Idols is a television show on the South African television network M-Net and the show has participants who compete to be selected as a best singer in South Africa. 161 The Penney Sparrow debacle came to the fore when Sparrow made comments on her social media platform and referred to black people as monkeys. Sparrow was dismissed by her employer for social media-related misconduct, as the comments were seen as racist. 162 Cliff case 1. 163 Cliffcase 2. 164 Cliff case 36. 24 by his employer for his alleged racist social media posts, which brought the employer's name into disrepute. Cliff's dismissal was not fair and justifiable since he did not directly contravene any Code of Good Practice by the employer or the LRA. Therefore, it is imperative that social media-related misconduct should be regulated to combat such unfair dismissals. 165 Such social media legislation and/or regulation should be aimed at mainly curbing the misuse of social media by employees as well as protecting the employer's own business interests. In Radebe v JD Group (Pty) Ltd, 166 an employee was dismissed for posting insulting statements on his Facebook page alter having been confronted by his employer regarding his lack of time keeping and not being productive as required in terms of his employment contract. The Commission for Conciliation, Mediation and Arbitration167 stated that the applicant should have exhausted internal measures instead of addressing his issues on a social media platform. The CCMA also said that employees represent the company in that they are the face and voice of their companies. The employee's conduct indicated that he had no regard to possible risks that could occur to the company due to his comments. The dismissal was subsequently upheld. This case shows that social media can be wrongly used as an outlet by employees to try and address their workplace problems.168 This usually gives rise to a conflict of interest in relation to the protection and balancing of the employer's rights to dignity and good name (business interests) and the employee's right to freedom of expression which empowers them to freely share their grievances.169 The dismissal was fair and justifiable because the employee's social media-related misconduct had put the company's name into disrepute. Accordingly, it is submitted that both the employees and employers should use internal measures to address their workplace problems rather than social media platforms. 170 165 Davey 2012 De Rebus 80. 166 Radebe v JD Group (pty) Ltd[GAJ12297-14] (Radebecase). 167 The Commission for Conciliation, Mediation and Arbitration (CCMA). 168 Potgieter Social Media and Employment Law 88. 169 Davey 2012 De Rebus 80. 170 Potgieter Social Media and Employment Law 88. 25 Similarly, in Motloung v The Market Theatre Foundation, 171 an employee was dismissed for what the CCMA described as a hate speech statement on Facebook, which had a negative impact on the employer. The employee abused social media to foster hate speech. The employee overstepped her boundaries of freedom of expression by her comments on social media. 172 The dismissal was justified because the employee had advocated for hate speech that is prohibited by the Constitution. 173 The Radebe and Motloung cases indicate that employees sometimes do not consider the consequences of their actions on social media platforms. As a result, dismissals of employees for their innocent but reckless comments on social media platforms will be substantively and procedurally fair. 174 2. 4.2 Liability for Derogatory Statements on Social Media Derogatory statements made on social media platforms by employees may fairly result in the dismissal of such employees.175 The CCMA accepted that derogatory posts made by employees on social media platforms may warrant dismissal when such posts are made carelessly by the employees concerned. 176 Fairness should be promoted when dealing with social media-related misconduct in the South African workplace. 177 In Media Workers Association of SA obo Mvemve v Kathorus Community Radio, 178 an employee criticised the organisation's board on social media and claimed its station manager was a criminal. The CCMA found that the employee was fairly dismissed as he had posted unfounded allegations on Facebook without verifying them first. The employee made statements that were not true and this 171 Motloung v The Market Theatre Foundation [GAJB4458-11] 71. 172 Davey 2012 De Rebus SO. 173 Section 16(2) of the Constitution of the Republic of South Africa, 1996 (Constitution). 174 R case (RFBC 35099 31 August 2015) 1. 175 Davey R 2015 Understanding and Managing the Risks of Social Media in the Workplace http://BowanGilfillan.co.za/understanding-and-managing-risks-of-social-media-in-the- workplace accessed 10 May 2016 30. 176 Davey 2015 http://Bowa nGilfilla n .co.za/ understanding-and-managing-risks-of-social-media-in- the-workplace accessed 10 May 2016 28. 177 Davey 2015 http ://Bawa nGilfillan .co.za/ understanding-and-managing-risks-of-social-media-in- the-workplace accessed 10 May 2016 28. 178 Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 IU 2217 (CCMA) (Media Workers case). 26 constituted social media-related misconduct. The conclusion reached by the CCMA was accurate, fair and justified as derogatory remarks could tarnish the reputation of the employer and result in loss of profit for the employer. 179 As stated earlier, 180 in Smith v Partners in Sexual Health (non-profit), 181 the employer accidentally accessed the employee's email intentionally and unfairly. The employee was charged with a number of offences, including bringing the employer's name into disrepute. The CCMA held that the intentional access of the email contravened the provisions of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 182 Although the Smith case did not expressly deal with social media-related misconduct, the CCMA held that the employee's dismissal was procedurally and substantively unfair. However, it is clear that employees can be held accountable or dismissed for their social media-related misconduct. Nonetheless, the dismissal of the employee in the Smith case was unfair in that the employer had accessed the employee's e-mail account without the knowledge or prior consent from the employee. 183 Therefore, there is need for careful regulation of social media-related misconduct to protect both the employee's rights and the employer's interests in the workplace. This could be done by enacting a specific social media legislation or amending the LRA and other related labour laws to expressly prohibit employees from misusing social media in the workplace to the detriment of their employers. In the same vein, such legislation should also prohibit employers from adopting any policies or Codes of Good Practices that unlawfully interferes with their employees' rights to freedom of expression, privacy, dignity and freedom of association in the workplace. 184 Failure 179 Hornung MS "Think Before You Type: A Look at E-mail Privacy in the Workplace" 2006 Fordham J.Corp and Fin.L 115-160. 180 See paragraph 1.2 in Chapter 1 of this dissertation. 181 Smith v Partners in Sexual Health (non-profit) {2011) 32 IU 1470 (CCMA) (Smith case). See the related comments in paragraph 1.2 in the introduction of Chapter One of this dissertation. 182 The Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA). 183 Smith case 4. See further related comments in paragraph 1.2 in the introduction of Chapter One of this dissertation. 184 Dahms-Jansen L 2015 Social Media in the Workplace Balancing Rights to Privacy with Freedom of Expression http:II BowmanGilfillan.co.zalsocial-media-in-the-workplace-balancing- rights to privacy-with-freedom-of-expression accessed 10 April 2016 1. 27 to do so would result in unfair consequences and dismissals of employees for social media-related misconduct. 185 In Beaurain case, the applicant was an employee of Groote Schuur Hospital who posted some complaints on his Facebook social media platform. 186 The complaints related to the condition of the Groote Schuur Hospital toilets. He further stated that the health of staff members and employees was being compromised. He was told to stop posting such complaints but he, nonetheless, continued with his allegations regarding the bad condition of the Groote Schuur Hospital toilets. Thereafter, he was subsequently dismissed for such misconduct. 187 Beaurain argued that his dismissal was unfair188 and he relied on the Protected Disclosure Act 189 and the LRA as a defence. The court had to evaluate whether the employee made a protected disclosure as defined in the PDA.190 The court relied on Tshishonga v Minister of Justice and Constitutional Development and another-91 which held a belief that a protected disclosure was made depends upon what the employee deems to be a reasonable disclosure. Furthermore, if no obligation on the employer arises to believe that an employee has made a protected disclosure, the employee's belief that he or she made a protected disclosure cannot be reasonable. 192 The judge held that the applicant's dismissal was not automatically unfair, 193 but did consider whether his dismissal was unfair. 194 It was held that the applicant's dismissal was fair and his claim was accordingly dismissed. Although the Tshishonga case did not deal with social media-related misconduct, it shows that an employee may face dismissal for social media-related misconduct for making a reckless protected 185 Dahms-Jansen 2015 http://BowmanGilfillan.co.za/social-media-in-the-workplace-balancing- rights to privacy-with-freedom-of-expression accessed 10 April 2016 1. 186 Beaurain case 2. 187 Beaurain case 2. 188 Section 187(1)(f) of the LRA. 189 Section 2 of the Protected Disclosure Act 26 of 2000 (PDA). 190 Beaurain case 17. 191 Tshishonga v Minister of Justice and Constitutional Development (2007) 28 IU 195 (LC) ( Tshishonga case). 192 Tshishonga case 185. 193 Beaurain case 36. 194 Beaurain case 40. 28 disclosure on a social media platform. 195 In this regard, the dismissal of the employee was fair and justified. The Tshishonga case indicated further that not all dismissal cases for social media- related misconduct are unfair on the affected employees. Nonetheless, there is no social media legislation in South Africa. 196 Moreover, social media is not expressly treated as a self-regulatory practice in South Africa. Accordingly, it is submitted that there is need for careful regulation of social media-related misconduct to curb the abuse of social media communications and the arbitrary dismissals of employees in respect thereof. 2.5 Examples of Employee Misconduct through Social Media Every employee has the responsibility to manage his or her social media platform. 197 There are consequences for social media-related misconduct. 198 Such misconduct occurs in various ways as discussed below. 2.5.1 Cyber bullying by employees Cyber bullying could occur when the Internet, cell phones or other devices are used to send or post content that is intended to harm or embarrass another person on social media platforms.199 The examples of cyber bullying include malicious or threatening emails or short message service communications (sms) sent to the victim's phone and offensive comments posted about an employee or employer on social media platforms. 20° Cyber bullying has a negative impact on the employee- 195 A protected disclosure is a disclosure made to: (a) a legal adviser; (b) an employer; (c) a member of Cabinet or of the Executive Council of a province; (d) a person or body; and (e) a any other person or body but does not include a disclosure in respect of which the employee concerned commits an offence by making that disclosure or made by a legal adviser to whom the information concerned was disclosed in the course of obtaining legal advice. 196 Oosthuizen V 2016 How Far is Too Far for Employees on Social Media? www.labourguide.co.zalmost-recentl2166 accessed 24 June 2016 1. 197 Dahms-Jansen 2015 http://BowmanGilfillan.co.zalsocial-media-in-the-workplace-balancing- rights to privacy-with-freedom-of-expression accessed 10 April 2016 1. 198 Davey 2015 De Rebus 80. 199 Piotrowski C "From Workplace Bullying to Cyberbullying: The Enigma of E-Harassment in Modern Organizations" 2012 Organization Development Journal 44-53. 200 Henry Attorneys 2011 Pay for Cyber-bullying and Harassment www.henryattorneys .co.za/2011/09/pay-for-cyber-bullying-and-harassment accessed 31 June 2016 1. 29 employer relationship in that it may affect the overall productivity of the employer's business201 when an employee's morale and self-confidence is destroyed by cyber bullying on social media. 202 2.5.2 Harassment Harassment is an act where one person subjects the other to hostile or prejudicial remarks or actions. 203 In terms of the Protection of Harassment Act,204 harassment means directly or indirectly engaging in conduct that the respondent knows or ought to know causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonable means.205 For instance, engaging in verbal, electronic or any other communication aimed at offending the complainant or causing hostility and prejudice to that person. 206 Harassment through electronic communication is provided for in the Harassment Act. Electronic communication that is hostile and prejudicial to others can occur on social media.207 An employer may be held liable for harassment perpetrated by his employee towards other employees or persons through social media while using the employer's name in the South African workplace. 208 This constitutes a serious misconduct that may lead to the dismissal of the perpetrator for social media-related misconduct in the South African workplace. In Bramford v Energiser (SA) Ltd,209 employees circulated pornographic and sexual offensive material using the company's electronic system.210 The arbitrator submitted that the employee's actions were not socially acceptable and that the jokes and material sent between the employees were so offensive that they also 201 Potgieter M Social Media and Employment Law(Juta Cape Town 2014) 89. 202 Potgieter Social Media and Employment Law 89. 203 The Free Dictionary 2016 Harassment http://www.thefreedictionary.com/harassment accessed 30 June 2016 1. 204 Protection from Harassment Act 17 of 2011 (Harassment Act). 205 Section l(a) of the Harassment Act. 206 Section l(a)(ii) of the Harassment Act. 207 Section 1 of the Harassment Act. 208 Whitear-Nel N and Subramanien D "A Fresh Perspective on South African Law Relating to the Risks Posed to Employers when Employees Abuse the Internet" 2013 South African Journal of Labour Relations 9-23. 209 Bramford v Energiser (SA) Ltd2000 12 BALR 1251 (P) (Bramfordcase). 210 Bramford case 4. 30 held a racial connotation one should seek to avoid in the new South African society.211 The arbitrator further submitted that although employees may enjoy this in private, such practices cannot be condoned in the South African workplace. 212 The arbitrator was correct in making the decision that distributing sexual and offensive material is not acceptable and could form social media-related misconduct. In this regard, the dismissal of the employees was fair and justified because both the court and the CCMA rejected their defence of unlawful invasion of privacy by the employer. Both the CCMA and the court correctly held that the conduct of the employees was offensive and damaging the reputation of the employer. 2.5.3 Employee productivity and evaluation Productivity is defined as an evaluation by an employer on the efficiency of an employee or group of employees.213 Employees gain access to company equipment such as computers and the internet to complete their given tasks more efficiently and effectively. 214 However, spending excessive time on social media platforms affects the productivity of employees.215 Wasted time on social media platforms could result in the loss of profit for the employer.216 Excessive use of social media platforms by employees in the workplace can result in a loss of productivity on the part of the employer. 217 The excessive and unlawful use of social media in the workplace can also overburden the employer's computer systems. 218 This has prompted other employers to block access to social media sites at their workplaces. 219 However, this does not prevent employees from accessing social 211 Bramford case 20. 212 Bramford case 46. 213 TechTarget 2016 Employee Productivity http://whatis.techtarget.com/definition/employee- productivity accessed 23 October 2016 1. 214 Baker D, Buoni N, Fee M and Vitale C "Social Networking and Its Effects on Companies and Their Employees" 2011 Neumann Business Review 1-14. 215 Baker et al 2011 Neumann Business Review 4. 216 Baker et al 2011 Neumann Business Review 4. 217 Baker et al 2011 Neumann Business Review 4. 218 Linklaters 2014 Social Media and the law www.linklaters.com/pdfs/mkt/london/tmt-social- media-report.pdf accessed 21 June 2016 10. 219 Linklaters 2014 www.linklaters.com/pdfs/mkt/london/tmt-social-media-report.pdf accessed 21 June 2016 10. 31 media through their smartphones. 220 Moreover, the employees always have some ways to get around the controls of their employer's computers in order to gain access to blocked websites in the workplace. 221 According to Peacock, 222 employers are concerned that their employees are always wasting time on social media platforms in the course of their working hours. 223 This has resulted in low productivity and security risks on the company, especially, when employees share private and non-public data of the company to external persons. Employers could face lawsuits, a decline in employee morale and even bad publicity because of social media-related misconduct of their employees.224 This will be detrimental on the business of the employer and could result in the loss of profit. 225 2.6 The Legal Consequences for Social Media-Related Misconduct A large number of people can see social media comments simultaneously and as such, several people at a time can view derogatory comments made on social media platforms by employees. This could give rise to reputational damage and vicarious liability on their employer. 226 According to Merrill, 227 social media has created many opportunities for employees to abuse computer systems of their employers and other people's fundamental rights. 228 The derogatory posts on social media may lead to defamation on the part of the employer.229 For instance, false derogatory posts by 220 Davey 2015 De Rebus 80. 221 Baker et al 2011 Neumann Business Review 9. 222 Peacock L 2008 Employers Watch Facebook Usage, Employers ' Law http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do? accessed 12 May 20161. 223 Baker et al 2011 Neumann Business Review 9. 224 Baker et al 2011 Neumann Business Review 4. 225 Baker et al 2011 Neumann Business Review 9. 226 Cavico FJ, Mujtaba BG, Muffler SC and Samuel M " Social Media and Employment-At-Will: Tort Law and Practical Considerations for Employees, Managers and Organizations" 2013 New Media and Mass Communication 25-41 . 227 Merrill T, Latham K, Santalesa Rand Navetta D "Social Media: The Business Benefits May Be Enormous, but can the Risks - Reputational, Legal, Operational be Mitigated" 2011 Ace Limited 7. 228 Davey 2015 http://BowanGilfillan.co.za/understanding-and-managing-risks-of-social-media-in- the-workplace accessed 10 May 2016 28. 229 Davey 2015 http://BowanGilfillan.co.za/understanding-and-managing-risks-of-social-media-in- the-workplace accessed 10 May 2016 28. 32 employees against their employers can be defamatory and may damage the reputation of the employer's business.230 2. 6.1 Reputation of the business Employees play a significant role on the business and its reputation. 231 In other words, employees' social media conduct can have a positive or negative impact on the business of their employer. 232 For instance, a model, Jessica Leandra Dos Santos made derogatory comments on her social media platform and stated that she dealt with an "arrogant and disrespectful kaffir" inside Spar. She further stated that she should have punched him. 233 This commentary raised many concerns of racism and her employer (Quick Trim South Africa) terminated her employment contract. 234 Her employment was terminated because of her social media-related misconduct that affected the business reputation of her employer. 235 The public also complained and suggested that the sponsors should terminate their relationship with her because of her social media-related comments. 236 The public assumed that the employer supported the statements made by Jessica on social media. Consequently, the reputation of the employer's business was grossly affected. 237 Eventually, Jessica faced dismissal for social media-related misconduct, which caused reputational damage on her employer. The dismissal was fair and justified because her conduct had negatively affected the profits and business reputation of the employer. 230 Mushwana G and Bezuidenhout H "Social Media Policy in South Africa" 2014 Southern African Journal of Accountability and Auditing Research 63-74. 231 Mushwana and Bezuidenhout 2014 Southern African Journal of Accountability and Auditing Research 64. 232 Mushwana and Bezuidenhout 2014 Southern African Journal of Accountability and Auditing Research 64. 233 Naik S 2012 Model's Racist Rant Costs Her http://www.iol.co.za/saturday-star/ models-racist- rant-costs-her-1290648 accessed 13 March 2016 1. 234 Naik 2012 http://www.iol.co.za/ saturday-star/models-racist-rant-costs-her-1290648 accessed 13 March 2016 1. 235 Davey 2015 De Rebus 80. 236 Pillay Verashni 2012 Jessica Leandra and The Racist Tweet http://mg.co.za/article/2012-05- 04-jessica-leandra-and-the-racist-tweet accessed 13 March 2016 1. 237 Potgieter Social Media and Employment Law 89. 33 2.6.2 Vicarious liability Vicarious liability occurs when the employer is strictly liable for the delict committed by its employee. This usually occur when the employer in question is not at fault or directly involved in that delict. 238 An employer can be responsible for the wrongful actions of its employees, if proven that employees executed such actions during the course of their employment.239 The origin of the doctrine of vicarious liability is based on public policy and the notion that a person who is wrongfully injured should not be left without a claim. 240 The misconduct of employees on social media may expose employers to the risk of vicarious liability. 241 This results in reputational damages to the employer, especially, where the employee's social media-related misconduct occurs during the course and/or scope of his or her employment. 242 In Minister of Police v Rabie, 243 the Appellate Division held that the determination of whether an employee acted within the scope of his or her employment includes both a subjective and an objective enquiry. The court submitted that although the police sergeant's wrongful acts of assaulting Mr Rabie (detainee) while he was off duty were not directly linked to his employer, the employer was vicariously liable to pay damages to the affected persons because he purported to act within the scope of his employment. It was also held that in assessing whether the conduct falls outside the scope of employment, reference has to be made to the intention of the employee. However, if there is no link between the employee's conduct in serving his own interests and the business interests of the employer, then the employer may not be held liable. This is an objective test. The court further held that an employer could be liable for the conduct of his or her employees, which he or she did not consent to, if such conduct was executed during the course of their employment. The employers should only be held liable if the risk was typical of the specific 238 Knobel JC Law of Delict6th ed (LexisNexis Durban 2010) 365. 239 Knobel Law of Delict 365. 240 Le Roux R "Vicarious Liability: Revisiting an Old Acquaintance" 2003 International Law Journal 1879-1883. 241 Davey 2015 http ://Bawa nGilfilla n .co.za/ understanding-and-managing-risks-of-social-media-in- the-workplace accessed 10 May 2016 28. 242 Knobel Law of Delict 365. 243 Minister of Police v Rabie 1986 ( 1) SA 117 (A) 134 ( Rabie case). 34 employment activity. A typical risk would be reasonably foreseeable by a reasonable employer. 244 The Rabie case did not deal directly with social media-related misconduct. Nonetheless, it shows that an employer may be vicariously liable for the conduct of his or her employee. 2.6.2.1 The requirements of vicarious liability There are three requirements for vicarious liability as follows: (a) the employer-employee relationship should exist at the time when the delict is committed. This requirement is less problematic when establishing the vicarious liability of the employer. However, a detailed discussion of this element falls outside the focus of this study. The employer-employee relationship is determined in terms of both the LRA and the BCEA. The LRA defines an employee as any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration. 245 Therefore, if an employee makes comments on social media about the business of the employer, it must be established whether there was an employment relationship prior to, or when such comments were made.246 (b) the employee's conduct must constitute a delict. A delict is defined as the wrongful and culpable act of a person that causes harm to another person. 247 Wrongfulness, fault, causation, harm and an act are the elements that must be present in order to classify conduct as a delict. 248 For instance, a delict can be committed through social media, where an employee posts wrongful 244 Murray S The Extent of an Employer's Vicarious Liability When an Employee Act Within The Scope of Employment(LLM-dissertation North-West University 2012) 3. 245 Section 213 of the LRA. 246 Potgieter Social Media and Employment Law 88. 247 Law Blog SA 2013 Law of Delict Study Guide Questions and Answers http ://lawblogsa. files.wordpress.com/2014/01/ q uestions_and_answers_study guide_2013. pdf accessed 11 May 2016 2. 248 Law Blog SA 2013 http://lawblogsa.files.wordpress.com/2014/01/questions_and answers_study guide_2013.pdf accessed 11 May 2016 2. 35 derogatory comments on a social media platform that may cause harm to another person during office working hours. This could constitute a social media-related misconduct. However, it must be noted that the employee may only incur delictual liability for social media-related misconduct if all the elements of a delict are proved. 249 ( c) an employee should act within the scope of employment. Bezuidenhout NO v Eskom, 250 illustrates that an employer can limit the scope of the employment duties of employees. In this case, an employee provided a lift to a hitchhiker in a clearly marked vehicle of Eskom against the clear instruction from his employer not to do so without express authority from his superiors. The employee was on call and negligently caused an accident, which resulted in the hitchhiker suffering severe head injuries. The case is not directly linked to social media-related misconduct but it provides a good example of instances where employers may be exempted from vicarious liability of their employees. The court stated that an employee's task must be viewed broadly and not reduced to specific activities. Eskom was subsequently not found liable because the employee acted against instruction. Therefore, the employee's conduct had no bearing on his employer's interest. This case illustrates how vicarious liability is determined. Vicarious liability can also arise because of social media-related misconduct when employees defame or insult other persons using computers and other resources of their employers during office hours. 251 The Employment Equity Act252 states that the employer must have policies to regulate the conduct of employees in the workplace, for instance, a social media policy. The employer may be held vicariously liable for an employee's social media-related misconduct if the employer fails to establish policies on social media misconduct in the workplace. 253 Nonetheless, social media policies alone may not adequately protect employers from incurring vicarious liability for their 249 Potgieter Social Media and Employment Law 89. 250 Bezuidenhout v Eskom 2003 3 SA 83 (SCA). 251 Singh BL The South African Employer's Regulation of Internet Misuse in the Workplace (LLM- dissertation University of KwaZulu-Natal 2015) 24. 252 Employment Equity Act 55 of 1998 (EEA). 253 Singh The South African Employer's Regulation 24. 36 employees' social media-related misconduct. Employers should provide other awareness measures apart from Codes of Good Practice and social media policies. This could curb social media-related misconduct by ensuring that their employees are aware of what constitutes such misconduct and its negative effects to the employer and other persons. 2. 6.3 Copyright and trade mark infringements A copyright refers to rights to works that are original and eligible for copyright such as literary works, musical works and artistic works. 254 The creator is granted the privilege to protect his or her artistic products, against piracy and other unlawful conduct by other persons. 255 Companies must protect their own trademarks and copyrights when using social media to promote their brands. The company's trademarks, copyrights and other intellectual property rights are as valuable as the products or services that they offer. 256 Employers can be held liable for copyright infringements that were committed by their employees on social media platforms.257 In this regard, employees can be dismissed for their copyright infringements on social media platforms and other related misconduct. 258 Companies should comply with general principles of advertising, namely, honesty, decency and truthful presentation, with the aim of consumer protection. 259 Social media-related misconduct can be committed by the employee who make a misrepresentation regarding the product of, or business of the employer on a social media platform. 260 In King v South African Weather Service,261 Mr King made a copyright claim against his employer (South African Weather Services) on the basis that he had developed a 254 Section 2 of the Copyright Ad98 of 1978 (Copyright Act). 255 The Free Dictionary 2016 Copyright http://legal-dictionary.thefreedictionary.com/copyright accessed 24 June 2016 1. 256 Steinman ML and Hawkins M "When Marketing Through Social Media, Legal Risks can Go Viral" 2010 Intellectual Property and Technology Law Journal 1. 257 Singh The South African Employer's Regulation 27. 258 Singh The South African Employer's Regulation 27. 259 Mischke C "Social Networks, Privacy and Dismissal- Facebook, Twitter et al: The Employer's Reputational Risk" 2011 Contemporary Labour Law 11-17. 260 Davey 2012 De Rebus 80. 261 King v South African Weather Service (716/2007) [2008] ZASCA 143 (King case). 37 computer program. 262 King was an employee of the Weather Bureau, which was taken over by the South African Weather Services. This automatically meant that King became an employee of the South African Weather Services. 263 A dispute arose involving the source codes of the computer programs and King refused to hand them over to the South African Weather Services. 264 This resulted in his dismissal for insubordination. 265 It is submitted that the dismissal of King was unfair since he was dismissed for refusing to hand over ideas that he developed at his own accord. King would have been guilty of social media-related misconduct, had he addressed his grievances on social media. In this regard, the dismissal would have been fair since his conduct would have infringed the trademark of the employer. This case is crucial since it provides important precedent that social media-related misconduct could also result in copyright and trademark infringements in the South African workplace. Moreover, the misconduct would have further resulted in copyright infringement as revealing information pertaining to the employer could be seen as copyright or trademark infringement. 266 Social media platforms enables employees to access various resources ranging from books, music, movies pictures and other forms of media during their working hours in the workplace. 267 Copyright laws268 such as the Copyright Act protect many of these resources. 269 The Copyright Act prohibits the unlawful distribution of resources that breach copyright laws.270 The Copyright Act protects literary and artistic works that are even found on social media.271 Consequently, any copyright infringement committed by employees on social media may lead to their dismissal by their employers for social media-related misconduct. 262 Kingcase 1. 263 Kingcase 2. 264 King case 2. 265 King case 2. 266 Davey 2012 De Rebus 80. 267 Mischke 2011 Contemporary Labour Law 11. 268 Singh The South African Employer's Regulation 27. 269 Section 2 of the Copyright Act. 270 Singh The South African Employer's Regulation 27. 271 Singh The South African Employer's Regulation 27. 38 2. 6. 4 Insider Trading Insider trading is defined as a practice by which one person armed with price- sensitive non-public ( confidential) information, concludes a transaction in securities or financial instruments to which that information relates without sharing that information with others, to the detriment of such persons or other innocent and unwitting investors.272 Insider trading is a form of market abuse. Therefore, it is an offence to commit insider trading in South Africa. 273 If it is established that the employee committed insider trading on social media by revealing confidential information about his or her employer's listed securities he or she may be found guilty of social media-related misconduct. 274 Insider trading constitutes a serious breach of the employment relationship hence such conduct may result in the dismissal of employees if such insider trading was directly perpetrated on social media platforms. 275 2.6.5 Restraints of trade and confidentiality A trademark is defined as a mark that is intended to be used by one person in the course of trade, which distinguishes his goods from other same kind of goods.276 Laugh it Off Promotions CC v South African Breweries International (Finance) BV tja SABMark International-77 dealt with a restraint of trade. The applicant had a tendency to alter words and images of trademarks then proceeding to have them printed on t-shirts with the aim of selling them to make profit. The respondent in this case was the owner of the trademark, "Carling Black Label", which is one of the leading beer brands in South Africa. Laugh it Off Promotion used the "Carling Black Label" trademark by simply changing the wording from "Carling Black Label" to 272 Chitimira H "Overview of the Market Abuse Regulation under the Financial Markets Act 19 of 2012" Obiter 254-263. 273 Davis D et al (eds) Companies and other Business Structures in South Africa 3rd ed (Oxford University Press South Africa Cape Town 2013) 223-224; sections 78 and 82 of the Financial Markets Act 19 of 2012. 274 Steinman 2010 Intellectual Property and Technology Law Journal 1. 275 Davey 2015 http:II BowanGilfillan.co.zalunderstanding-and-managing-risks-of-social-media-in- the-workplace accessed 10 May 2016 27. 276 Section 9(1) of the Trade Marks Act 194 of 1993 (Trade Marks Act). 277 Laugh It Off Promotions CC v South African Breweries International {Finance) BV t/ a SABMark International2005 (8) BCLR 743 (CC) (Laugh It Off Promotion case). 39 "White Black Labour Guilt" on their products. If Laugh it Off Promotion committed this misconduct on social media, it would have been liable for social media misconduct. 278 Moreover, Laugh it Off Promotion would have been dismissed for social media-related misconduct if it was the employee of the South African Breweries International. Such dismissal would have been warranted by the fact that the employee breached a restraint of trade by altering words and images of trademarks of the South African Breweries International. 279 The Laugh it Off Promotion case did not directly deal with social media-related misconduct but it shows how a restraint of trade may be breached in South Africa. The restraints and confidentiality agreements protects organisations from employees who may: a) abandon their employer in favour of establishing a similar business in competition or with the client of the employer; b) approach the clients or customers of the employer for the business to be set up during or after working hours; c) convince the existing members of staff to abandon the employer in favour of the new business venture as established by the employee, during the course of the employment or after resignation; d) use protected confidential information belonging to the employer and use it to cause damage to the business of the employer. 280 The employees could be found guilty of restraint of trade if they conduct themselves in the above-mentioned ways. 281 The breach of the restraint of trade could result in social media-related misconduct if employees post or engage in prohibited conduct on their social media platforms. 282 278 Steinman 2010 Intellectual Property and Technology Law Journal 3. 279 Davey 2015 http://BowanGilfillan.co.za/understanding-and-managing-risks-of-social-media-in- the-workplace accessed 10 May 2016 20. 280 Potgieter Social Media and Employment Law 78. 281 Potgieter Social Media and Employment Law 78. 282 Potgieter Social Media and Employment Law 78. 40 In Experian South Africa v Haynes, 283 the applicant conducted business in the credit information industry. 284 The case did not directly deal with social media-related misconduct. It dealt with businesses that provided products and services to its customers who were juristic persons such as banks, parastatals, government departments, manufacturing companies and sole proprietors. 285 On 31 October 2011, the first respondent resigned from the applicant's employment, 286 upon which he took up employment with the competitor. 287 The confidentiality agreement signed by the first respondent stated that he would not directly or indirectly take employment with the competitor, during the period of the restrain. The employee breached the confidentiality agreement between him and his first employer by working for the competitor. The conduct of this employee could have resulted in social media-related misconduct if he addressed his grievances on social media.288 2. 6. 6 Breach of fiduciary duties Fiduciary duties are directed at an employee to act solely in the best interests of the employer.289 The employee has to abide by the duties imposed on him or her even where the duties conflict with his/her interests in the workplace.290 The employee is prohibited from placing himself in a position where his interests conflict with his duty to the employer. 291 A dismissal of the employee could be justified when his or her action causes a breakdown on the employer-employee relationship. 292 An employee's social media-related misconduct may lead to the breakdown of the employer- employee relationship when he or she breaches the fiduciary duties through social media. 283 Experian South Africa v Haynes (48711/2011) [2012] ZAGP JHC 105; 2013 (1) SA 135 (GSJ); (2013) 34 IU 529 (GSJ) (18 May 2012) (Haynes case). 284 Haynes case 3. 285 Haynes case 3. 286 Haynes case 8. 287 Haynes case 9. 288 Steinman 2010 Intellectual Property and Technology Law Journal 6. 289 Davey 2012 De Rebus 80. 290 Singh The South African Employer's Regulation 32. 291 Davey 2015 http://BowanGilfillan.co.za/ understand i ng-and-managing-risks-of-socia 1-media-in- the-workplace accessed 10 May 2016 20. 292 Shange 2016 http://www.News24.co.za/SouthAfrica/News/yes-your-boss-can-fire-you-for- social-media-posts-attorney-20160202 10 March 2016 1. 41 2.7 Employer's role in combating social media-related misconduct Employers must have adequate and clear policies, measures and/or Codes of Good Practices on social media-related misconduct in the South African workplace during office working hours. Such policies, measures and/or Codes of Good Practices must clearly prohibit social media-related misconduct and practices that give rise to such misconduct and its negative consequences on the part of the employer and other related parties. Moreover, employers must ensure that their social media-related misconduct regulations, Codes of Good Practices and other related policies are drafted carefully in compliance with the LRA and other related laws. This would avoid arbitrary violation of the employee's right to privacy, 293 dignity, 294 freedom of expression295 and freedom of association. 296 Such regulations, Codes of Good Practices and other related policies must not unduly interfere with the employees' bona fide use of social media. This follows the fact that social media is crucially important because it enables the free flow of useful information between employees and employers in the workplace. 297 Moreover, proper use of social media could also play a pivotal role in enabling the employees to express their bona fide personal opinions and/or grievances with others for them to be addressed. Thus, the social media-related misconduct regulations of employers should adequately combat the misuse of social media without violating the employees' aforesaid rights. 298 Employers must guard and assess the risks of unlawfully encroaching on their employees' Constitutional rights to privacy, freedom of expression and freedom of association. 299 Conversely, employees must not violate their employer's business interests and reputation through social media-related misconduct in the workplace during office working hours. 293 Section 14 of the Constitution. 294 Section 10 of the Constitution. 295 Section 16 of the Constitution. 296 Section 18 of the Constitution. 297 Balule BT "Promoting and Safeguarding Media Pluralism in Botswana: An Assessment of Legal Risks" 2015 Commonwealth Law Bulletin 1, 1. 298 Balule 2015 Commonwealth Law Bulletin 2. 299 See related comments by Balule 2015 Commonwealth Law Bulletin 2; Lefever K, Lievens E, and Valcke P "Risk-Based Regulation in the Media Sector: To Measure is to Know" 2012 JAJJO - SID 1, 3. 42 2.8 Conclusion Dismissal of employees for social media-related misconduct should be procedurally and substantively fair. The fairness of a dismissal is determined using three grounds, namely, the conduct of the employee, the capacity of the employee and the operational requirements of the employer's business. If these grounds are not proven, such dismissal will be unfair. The scope of procedural and substantive fairness was analysed in accordance with the different labour laws in this chapter.300 Accordingly, dismissals for social media-related misconduct must be both procedurally and substantively fair. It was noted that social media-related misconduct could give rise to various legal consequences on the part of the employer. In the same vein, employees can also be held liable for making derogatory statements on social media platforms. In this regard, examples of social media-related misconduct were discussed in order to outline their consequences. Given this background, it is submitted that there is need for careful regulation of social media-related misconduct in South Africa. 300 See paragraph 2.3 in this Chapter. 43 CHAPTER THREE LEGISLATIVE CHALLENGES ASSOCIATED WITH DISMISSALS OF EMPLOYEES FOR SOCIAL MEDIA-RELATED MISCONDUCT 3.1 Introduction The International Labour Organisation (IL0)301 is a committee of the United Nations that has influenced the South African labour legislation since South Africa ratified ILO conventions to align its legislation with the ILO international standards. South Africa is a member state of the ILO and is obliged to enact labour legislation that is consistent with the ILO international standards. South Africa also has to uphold the ILO principles on the rights to freedom of association, to engage in collective bargaining, to equality at work and to eliminate forced labour and child labour.302 The principles of a non-sexist, non-racial and equality based democratic society influence the South African labour legislation as such legislation aims to eradicate sexism, racism and inequality amongst employers and employees.303 In South Africa, the Labour Relations Act,304 the Basic Conditions of Employment Act,305 and the Employment Equity Act3°6 regulate the employment relationship between the employer and employee. Furthermore, the Promotion of Equality and Prevention of Unfair Discrimination Act, 307 the Occupational Health and Safety, 308 and Compensation for Occupational Injuries and Diseases Act309 For instance, the right to fair labour practices is one of the fundamental rights of employees that is 301 The International Labour Organisation (ILO). 302 Bhoola U 2002 National Labour Law Profile: South Africa www.ilo.org/ifpdial/information- resources/national-labour-law-profiles/WCMS_158919 accessed 12 February 2016 1. 303 Bhoola 2002 http://www. ilo.orglifpdial/information-resources/ national-labour-law- profiles/WCMS_158919 accessed 12 February 2016 1. 304 Labour Relations Act66 of 1995 (LRA) as amended by Labour Relations Amendment Act 6 of 2014. 305 Basic Conditions of Employment Act75 of 1997 (BCEA) as amended by the Basic Conditions of Employment Amendment Act 11 of 2002. 306 Employment Equity Act 55 of 1998 (EEA). 307 Promotion of Equality and Prevention of Unfair Discrimination Act4 of 2000 (PEPUDA). 308 Occupational Health and Safety Act85 of 1993 (OHSA). 309 Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). 44 regulated by the South African labour laws. 310 However, the fact that the aforesaid legislation has been enacted does not guarantee the proper regulation and protection of employees and employers' rights in the workplace during office working hours. This is exacerbated by the fact that the current South African labour laws do not have clear steps or guidelines that could be employed in relation to the dismissal of employees for social media-related misconduct in the workplace. In this regard, it is submitted that the courts should adjudicate on social media-related misconduct cases in accordance with the Constitution. The Constitution states that when interpreting the Bill of Rights, the courts must consider international law.311 It must be noted that misconduct by employees differs from other forms of misconduct. Nonetheless, the LRA and other related South African labour laws do not expressly provide whether social media-related misconduct is prohibited or treated substantially different from other types of misconduct that are enumerated in the Schedule 8 of the Code of Good Practice of the LRA. This chapter analyses the legislative challenges associated with the dismissal of employees for social media-related misconduct in the workplace. This is done by examining the adequacy of the relevant legislation pertaining to the employer- employee relationship in South Africa. To this end, the employee's right to fair labour practices is discussed in light of the employer's right to dismiss his or her employees for social media-related misconduct. 3.2 The Labour Relations Act The LRA was the first labour-related legislation to be promulgated312 and enacted in South Africa and has been amended by the Labour Relations Amended Act313 The LRA is the primary labour legislation that governs labour-related matters in South 310 Bhoola 2002 http://www.ilo.org/ifpdial/i nformation-resources/ national-labour-law- profiles/WCMS_158919 accessed 12 February 2016 1. 311 Section 39 of the Constitution of the Republic of South Africa, 1996 (Constitution). 312 Smit P and Van Eck BPS "International Perspectives on South African's Unfair Dismissal Law" 2010 Comparative and International Law Journal of South Africa 46-67. 313 LRA was enacted in 1995 and amended by the Labour Relations Amendment Act 6 of 2014. 45 Africa. 314 The LRA provides that it is not appropriate to dismiss an employee for a first time offence.315 However, an exception is made for the misconduct that is serious enough and of such gravity that it renders the employment relationship intolerable, therefore, warranting a dismissal.316 For instance, dishonesty or wilful damage to the property of the employer, physical assault on the employer, a fellow employee, client or customer and gross insubordination. 317 The LRA does not expressly provide for social-media abuse and/or treat it as a general misconduct as stipulated in Schedule 8 of the Code of Good Practice. In Scientific and Industrial Research v Fijen,318 the Appellate Division held that it is well established that the relationship between employer and employee is "in essence one of trust and confidence". It also held that, at common law, conduct that is clearly inconsistent with such trust and confidence entitles the "innocent" party to cancel the agreement. Given this status quo, the amendment of the LRA is imperative to expressly prohibit social media-related misconduct in the workplace. This approach could enable employers to evade liability for unlawful dismissals of their employees for social media-related misconduct in the workplace. The express prohibition of social media- related misconduct in the LRA could also help employees to avoid committing such misconduct ignorantly. Such prohibition could also enhance trust and confidence in the employer-employee relationship in the workplace. However, there are numerous cases where employees faced dismissal for social media-related misconduct. 319 Furthermore, some employees were dismissed in 314 Botha MM Employee Participation and Voice in Companies: A Legal Perspective (LLD- dissertation North West University 2015) 16. 315 Item 3(4) Schedule 8 Code of Good Practice: Dismissals of the LRA. 316 Item 3( 4) Schedule 8 Code of Good Practice: Dismissals of the LRA. 317 Item 3(4) Schedule 8 Code of Good Practice: Dismissals of the LRA. 318 Council for Scientific and Industrial Research v Fijen [1996] 6 BLLR 685 (AD) 691!. 319 Sedick v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA), the employee did not restrict the Facebook settings and the posts he made could be seen by everyone. The employee was dismissed as a result of derogatory Facebook status updates. The employee challenged the fairness of the dismissal at the CCMA. The CCMA held that the employee was fairly dismissed; Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA), the employee was dismissed for making derogatory comments on Facebook. The CCMA held that the employer was entitled to intercept the posts made by the employee. The CCMA held further that the employee was fairly dismissed as the privacy of the employee had not been infringed when the employer accessed their Facebook posts and in Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 IU 2217 (CCMA), a radio station employee criticised 46 violation of the LRA requirements on misconduct-related dismissals. In R v VL, 320 the arbitrator concluded that a post on a social media platform by an employee did not constitute any impairment to the name of the employer. The court held further that the employee's intention was simply to seek support from fellow friends and family. When deciding whether to impose the penalty of dismissal or not, the employer should in addition to the gravity of the misconduct, consider various factors. Such factors could include the employee's circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.321 The misconduct occurs when an employee culpably fails to consider or abide by the rules of his or her workplace.322 Such rules arise from an implied or express term within an employee's contract of employment.323 Various disciplinary codes that all employers are obliged to comply with are outlined in the LRA.324 Nonetheless, such codes merely serve as guidelines for employers to regulate employees' conduct in the workplace. 325 The guidelines set out in the LRA are not mandatory as they only serve to assist employers to deal with all issues such as conflicts encountered in the workplace instead of imposing unreasonable rules on employees that are not set out in the LRA. The unreasonable rules could be working during weekends without any remuneration for the services rendered by the employee. In Edcon Ltd v Pillemer NO and others, 326 it was emphasised that the employer must put forth evidence to support the allegation that dismissal is an appropriate sanction.327 This would require evidence that the trust relationship between the the organisation's board and claimed its station manager was a criminal. The CCMA held that the employee was fairly dismissed as he had posted unfounded allegations on Facebook without having addressed these internally first. 320 R v VL (NBCRFI) (RFBC 35099 31 August 2015) (R case). The employee had challenged her dismissal for the posts that she had made on Facebook. She stated that she had been retrenched by a senior employee, after serving duties of employment over a period of 20 years. Furthermore, she stated that the dismissal was done without prior notice. 321 Item 3(5) Schedule 8 Code of Good Practice: Dismissals of the LRA. 322 Grogan J Dismissal 5th ed (Juta Cape Town 2013) 143. 323 Grogan Dismissal 143. 324 Schedule 8 of the LRA. 325 Moropane v Gilbeys Distillers and Vintners (Pty) Ltd(1998) 19 IU 635 (LC) (Moropanecase). 326 Edcon Ltd v Pillemer NO and others [2010] 1 BLLR 1 (SCA) (Edcon case). 327 Edcon case 8. 47 employer and employee had broken down.328 Thus, an employer can dismiss an employee fairly if proved that there was transgression, which had the effect or impact that made the sanction of dismissal appropriate.329 Any person who is seeking to establish whether a dismissal for misconduct is unfair should consider whether: (a) the employee has breached a rule which serves to regulate the conduct of the employee in the workplace; or (b) which proves that there was an existence of that rule. 330 Many rules that employers rely on in dealing with cases involving misconduct, have their origin in the implied common law duties of the employee.331 For instance, the duty to abide by the given instructions from the employer.332 Employers do not have to notify the employees of every rule in the workplace. However, it is submitted that employees must be made aware that social media abuse or misconduct will have negative consequences against the offenders.333 In Warren Thomas Griffith v VWSA, 334 the Commission for Conciliation Mediation and Arbitration, 335 held that an employee can be dismissed for disobeying a lawful instruction and abusing company facilities such as the unauthorised use of internet and e-mail systems. The CCMA held that a person with the employee's intelligence and experience should appreciate the fact that intentional disregard of the employer's instructions would constitute a misconduct. In addition, an ordinary person can understand the meaning of "undesirable" and pornography would fall into this realm. 336 The case did not deal directly with social media-related misconduct but it shows that dismissals for disobeying a rule and/or abusing the computer systems of the employer to unlawfully access and misuse social media 328 Edcon case 9. 329 Smit N "How do you Determine a Fair Sanction? Dismissal as Appropriate Sanctions in Cases of Dismissal for (Mis) conduct" 2011 Dejure 49-73. 330 Grogan Dismissal 143. 331 Grogan Dismissal 143. 332 Grogan Dismissal 143. 333 Grogan Dismissal 144. 334 Warren Thomas Griffith v VWSA, CCMA case no. KN EC 16174, 9-11 (unpublished) ( Warren case). 335 The Commission of Conciliation, Mediation and Arbitration (CCMA). 336 Warren case 8-11. 48 platforms in the workplace can be treated as social media-related misconduct that gives rise to fair and justifiable dismissals of such employees. Had the employee unlawfully used the employer's computer systems to access social media platforms in the workplace and post the pornographic material, such employee could be fairly and justifiably dismissed for social media-related misconduct in the workplace. However, notwithstanding the fact that some rules and/or standards are well established and known to employees,337 the non-disclosure on the part of the employer of conduct that constitutes misconduct could have a negative effect on the part of employees as some would not be aware of certain conduct that is prohibited. Thus, it is imperative that employees be informed of social media rules in the workplace. The LRA does not indicate whether any employee is allowed to make comments on a social media platform in the company's name at his or her workplace without permission from his or her employer. Prior to the dismissal of an employee based on contravening a rule, it must be established that the rule was valid.338 If it is found that such a rule was unlawful or unreasonable, the employees are allowed to disregard such a rule. 339 It must be noted that an establishment of whether an employee has breached a rule is two-fold.34° Firstly, such a rule should be carefully interpreted in order to indicate all the offences.341 Secondly, it must be established whether there was a contravention of a rule. It should also be proved whether the employee's conduct had breached that rule. 342 The onus of proving that a rule was contravened in the workplace rests with the employer.343 In this regard, it is not clear whether an employee who was dismissed for social media-related misconduct should also prove that the dismissal was unfair under the LRA.344 It is also not clear whether the 337 Item 3(1) of Schedule 8 of the Code of Good Practice of the LRA. 338 Grogan Dismissal 144. 339 Grogan Dismissal 144. 340 Grogan Dismissal 145. 341 Grogan Dismissal 145. 342 Grogan Dismissal 145. 343 See Item 7 of Schedule 8 of the Code of Good Practice: Dismissals of the LRA; Grogan Dismissal 146. 344 Section 186(1) and (2) of the LRA; Potgieter M Social Media and Employment law (Juta Cape Town 2014) 71. 49 employer should prove that there was a valid rule in the workplace prohibiting social media misconduct just like other general misconducts that are stated in item 7 of Schedule 8 of the Code of Good Practice of the LRA. 345 In terms of the LRA, the failure on the part of the employer to prove on a balance of probabilities that the dismissed employee contravened a valid rule that existed in the workplace will result in such dismissal being substantially unfair.346 Knowledge of a rule entails that if employees were aware of a rule in the workplace, they can be disciplined correctly for contravening such a rule. 347 An appropriate sanction is also an important requirement when assessing whether a dismissal for misconduct was unfair.348 The courts usually have some challenges in deciding whether a dismissal or a lesser sanction can be imposed for a proven offence.349 The courts are required to ascertain if employers that have the responsibility to dismiss employees do so fairly and reasonably. 350 This approach should also apply to the dismissal of employees for social media-related misconduct in order to combat unfair dismissals for such misconduct.351 The aforesaid guidelines are not always exercised as provided in the LRA. For instance, some misinterpretation could occur regarding the use of these guidelines by employers.352 The LRA does not have guidelines on how social media-related misconduct should be regulated. 353 Accordingly, the LRA should be amended to enact proper guidelines for social media-related misconduct regulation in South Africa. The LRA merely places an obligation on the employer to establish rules or codes relating to the conduct of employees in the workplace that helps to create certainty and consistency.354 Although employers are entitled to protect their 345 Potgieter Social Media and Employment law 71. 346 Section 186(1) read with (2) of the LRA. 347 Grogan Dismissal 149. 348 Item 7(b)(iv) of the Schedule 8 Code of Good Practice: Dismissals of the LRA. 349 Grogan Dismissal 155. 350 Grogan Dismissal 155. 351 Potgieter M Social Media and Employment law 60. 352 Celliers FQ "The Role and Effect of Social Media in the Workplace" 2013 N Ky L Rev 567-592. 353 Celliers 2013 N Ky L Rev 569. 354 Item 3(1) Schedule 8 Code of Good Practice: Dismissals of the LRA. 50 interests, employees' rights should also be considered when making such rules.355 Moreover, the disciplinary codes established by the employer in the workplace in accordance with the LRA do not include social media-related misconduct.356 In this regard, it is submitted that the LRA should be amended to enact provisions that obliges employers to develop disciplinary codes on social media use in the workplace. 357 It is not clear whether employers can invoke misconduct disciplinary measures against employees that engage in social media-related misconduct in accordance with the relevant labour laws.358 This follows the fact that misuse of social media by employees is not expressly classified as a misconduct under the LRA's Code of Good Practice and other related laws. Consequently, an employee's employment may be terminated for social media-related misconduct if such misconduct was serious enough to justify the termination.359 However, some employees were dismissed without an offence that justifies such a dismissal. For instance, in Smith v Partners in Sexual Health (non-profit), 360 the employee was charged with a number of offences because the employee discussed internal issues on her e-mail with other people which made reference to the employer including bringing the employer's name into disrepute. This occurred after the employer discovered e-mails between the employee and former employees, as well as persons outside the organisation, which made reference to internal matters. Nonetheless, the CCMA held that the employee's dismissal was procedurally and substantively unfair. Normal rules of fairness and equity apply equally to virtual labour relations. 361 Accordingly, the LRA should be amended to adequately deal with social media-related misconduct and make 355 Celliers 2013 N Ky L Rev 570. 356 Celliers 2013 N Ky L Rev 571. 357 Van Wyk J and Heyns M 2012 To Name or Not to Name, That is The Question http:// www.werksmans.com/wpcontent/uploads/20l3/04/150_JN5313_Werksmans_Brief_ To_name _or_not_to_name accessed 12 July 2016 1. 358 Item 3(2) Schedule 8 Code of Good Practice: Dismissals of the LRA. 359 Burrows T 2013 Social Media Changes the Disciplinary Landscape http://mg.co.za/author/tracy-burrows accessed 12 January 2016 1. 360 Smith v Partners in Sexual Health (non-profit) (2011) 32 IU 1470 (CCMA). Also see paragraph 1.2 on the introduction in Chapter One and paragraph 2.4.2 in Chapter Two of this dissertation. 361 Davey R 2015 Dismissal for Social Media Misconduct http://BowmanGilfillan.co.za/dismissal- for-social-media-misconduct accessed 14 July 2016 1. 51 provision for sanctions for such misconduct in the workplace. This will combat challenges experienced in the workplace due to social media-related misconduct. This status quo is worsened by the fact that the LRA does not have any provision on social media-related misconduct. This presents a regulatory challenge to employers in relation to social media-related misconduct in the workplace during office working hours since no specific guidelines and/or provisions are contained in the LRA to help employers to deal with such misconduct lawfully and fairly. This challenge has given rise to many unfair dismissals of employees for social media-related misconduct in the South African workplace. 3.3 The Basic Conditions of Employment Act The BCEA was promulgated in 1997 and it came into effect on 1 December 1998. The Basic Conditions of Employment Amendment Act amended the BCEA. 362 The BCEA aims at preventing employers from imposing unreasonable terms and conditions of employment in order to exploit their employees.363 The BCEA discourages such exploitation by protecting employees against unlawful dismissals.364 Thus, employers may only dismiss employees if such dismissal is effected lawfully.365 The BCEA states that every employee is entitled to discuss his or her working conditions with his or her fellow employees or employers.366 Employees enjoy protection where any information shared is only concerned with their conditions of employment.367 However, the BCEA does not expressly prohibit social media-related misconduct. Furthermore, the BCEA does not expressly provide whether a mere discussion of employees' working conditions through social media during office working hours could constitute social media-related misconduct. This provides a challenge to both employees and employers since employees could be unfairly 362 The BCEA was amended by the Basic Conditions of Employment Amendment Act 11 of 2002. 363 Section 7 of the BCEA. 364 Giles Files 2015 Social Media: Valid Reason to dismiss www.gilesfiles.co.za/dispute- resolution-3/social-media-valid-reason-to-dismiss/ accessed 25 May 2016 1. 365 Giles Files 2015 www.gilesfiles.co.za/dispute-resolution-3/social-media-valid-reason-to- dismiss/ accessed 25 May 2016 1. 366 Section 78(1)(b) of the BCEA. 367 Celliers 2013 N Ky L Rev 587. 52 dismissed for their innocent social media discussions relating to their working conditions. On the other hand, the employers may suffer reputational damage through their employees' social media discussions relating to confidential and sensitive information on their working conditions. 3.4 The Employment Equity Act The EEA was enacted in 1998 and amended in 2013.368 The EEA imposes a duty on employers to eliminate unfair discrimination.369 The EEA outlines the different forms of unfair discrimination as well as the penalties that may be imposed on the offenders in this regard. 370 Employers should take reasonable steps to prevent all forms of discrimination in their workplaces. 371 Employers who do not comply with the duty to eliminate unfair discrimination in the workplace may be held liable for damages, where it is established that they discriminated or allowed discrimination to be committed by their employees on social media platforms. 372 The main aim of EEA is to regulate the relationship between the employers and employees in relation to discrimination or affirmative measures in the workplace. 373 Employers are required not to discriminate employees on any ground including race, gender, sex, pregnancy, marital status, family responsibility, or on any other arbitrary ground.374 An employer could become liable for discrimination if an employee access social media in the workplace using the internet facilities of the employer to commit social media-related misconduct, which is discriminatory, such as racial, sexist or prejudicial comments without the employer's consent. 375 When an employee has committed social media-related misconduct in the form of discrimination, an employer will not be liable if he or she has taken reasonable steps 368 See Employment Equity Amendment Act47 of 2013. 369 Section 5 of the EEA. 370 Singh BL The South African Employer's Regulation of Internet Misuse in the Workplace (LLM- dissertation University of KwaZulu-Natal 2015) 28. 371 Section 5 of the EEA. 372 Singh The South African Employer's Regulation 28-29. 373 Section 2 of the EEA. 374 Section 5 of the EEA. 375 Singh The South African Employer's Regulation 29. 53 to eliminate the discriminatory conduct.376 Such steps could include the adoption of policies that condemns discriminatory conduct and the misuse of social media in the workplace during office hours.377 Nonetheless, the failure of the EEA to expressly outlaw social media-related misconduct has provided new regulatory and discriminatory challenges for employers and employees in the workplace respectively. A misconduct could easily be committed through social media, where an employee posts comments on social media that discriminate other employees. If it is found or proven that an employee has made comments that are discriminatory on social media, such comments could constitute social media-related misconduct. 378 Access to a job applicant's Facebook could allow the employer to obtain information such as political affiliation or sexual orientation of that applicant.379 Investigating a job applicant's sexual orientation or political views posted on Facebook could negatively influence the selection or appointment of that applicant.380 This could amount to unfair discrimination by the employer. Therefore, it is submitted that employers should refrain from unlawfully accessing information of potential job seekers that is posted on their social media platforms in order to discriminate them based on such information.381 However, if an applicant posts negative information relating to the potential employer on a social media platform, this could constitute social media-related misconduct. The improper use of a prospective employee's personal information by an employer must be prohibited as it violates the employee's right to privacy.382 Such conduct on the part of the employer could also breach privacy laws that may be found in other different legislation383 such as the Regulation of Interception of Communications and 376 Singh The South African Employer's Regulation 29. 377 Singh The South African Employer's Regulation 30. 378 Vorster G 2012 SA Law Protects against Employer Facebook Prying http://businesstech.co.za/news/internet/ll 749/ accessed 15 May 2016 1. 379 Vorster 2012 http://businesstech.eo.za/news/internet/11749/ accessed 15 May 2016 1. 380 Vorster 2012 http://businesstech.co.za/news/internet/11749/ accessed 15 May 2016 1. 381 Vorster 2012 http://businesstech.co.za/news/internet/11749/ accessed 15 May 2016 1. 382 Celliers 2013 N Ky L Rev 579. 383 Celliers 2013 N Ky L Rev 579. 54 Provision of Communication-Related Information Acf84 and the Protection of Personal Information Act385 The breach of such legislation can occur as a result of the employer viewing an employee's social media platforms without his or her knowledge or consent.386 An employer may regard the information found on the employee's social media platforms as social media-related misconduct if it is defamatory and discriminatory nature. The employers face several challenges regarding the regulation and use of social media in the workplace.387 In this regard, the EEA should be amended to enact provisions on how social media-related misconduct should be regulated in the workplace and the circumstances that could lead to the dismissal of employees in respect thereof. The EEA should also be amended to enact adequate provisions on the penalties for social media-related misconduct. The absence of such penalties provides new regulatory challenges for employers when dealing with social media-related misconduct by their employees in the workplace during office working hours. 3.5 The Promotion of Equality and Prevention of Unfair Discrimination Act The PEPUDA commenced on 13 June 2003. PEPUDA was established to: (a) promote the equal treatment of people,388 (b) eliminate unfair discrimination,389 and (c) prevent and eliminate hate speech.390 PEPUDA prohibits the publication, propagation, advocacy and communications of hate speech that aims to cause hurt, incite harm and propagate hatred.3 91 An employee of the Market Theatre in Johannesburg was dismissed for social media-related misconduct. 392 The dismissal 384 Regulation of Interception of Communications and Provision of Communication-Related Information Act70 of 2002 (RICA). 385 Protection of Personal Information Act4 of 2013 (POPI). 386 Cell iers 2013 N Ky L Rev 579. 387 Cell iers 2013 N Ky L Rev 584. 388 Cassim F "Regulating Hate Speech and Freedom of Expression on the Internet: Promoting Tolerance and Diversity" 2015 SAO 330-356. 389 Section 6 of PEPUDA. 390 The 10 of PEPUDA. 391 Section 10(1) of PEPUDA. 392 Legal Brief 2011 Hate Speech on Facebook Gets Employee Fired http :I llegalbrief. co.zalstoryl hate-speech-on-Facebook-gets-employee-firedl accessed 10 November 2015 1. 55 occurred after a disciplinary committee at his workplace found him guilty of advocating hate speech on Facebook. 393 The employee had posted derogatory comments about Jewish directors in the South African film industry.394 In 2014, a telecommunication firm Ericsson South Africa terminated the employment contract of an employee for posting racist comments on social media. 395 The employee made racist comments on social media after being involved in a taxi accident and she addressed her frustrations on social media. The employer found that she had breached the Ericsson South Africa's ethics code, resulting in the immediate termination of her contract. In 2013, For Him Magazine396 (South African edition) magazine397 employees were dismissed for making comments on "corrective rape" on Facebook.398 These comments were regarded as social media-related misconduct. The comments by the Ericsson South Africa and FHM (South African edition) magazine employees were found by the respective companies to be offensive and hurtful, resulting in their employees' dismissal. PEPUDA allows the use of publications or communications for bona fide purposes such as to market the employer's business and to establish good relations with other social media users.399 It can be concluded that PEPUDA promotes tolerance amongst bona fide internet users.400 Nonetheless, PEPUDA should be amended to enact provisions on the regulation of social media-related misconduct in the workplace. This could curb the misuse of social media platforms by employees in the workplace.401 Such provisions will also combat the arbitrary dismissals of employees by employers for their alleged social media-related misconduct.402 PEPUDA has no penalties for social media-related 393 Legal Brief 2011 http://legalbrief.co.za/story/hate-speech-on-Facebook-gets-employee- fired/ accessed 10 November 2015 1. 394 Legal Brief 2011 http://legalbrief.co.za/story/hate-speech-on-Facebook-gets-employee- fired/ accessed 10 November 2015 1. 395 Sowetanlive 2014 Ericsson Employee Fired after Racist Rant on Facebook http://www.sowetanlive.co.za/news/ 2014 accessed 10 March 2015 1. 396 For Him Magazine (FHM). 397 FHM (South African edition) magazine is a men's magazine publication. 398 Mail and Guardian 2013 FHM Fires Rape Comment Writers http://mg.co.za/article/2013-07- 19-fhm-fires-rape-comment-writers accessed 15 March 2015 1. 399 Section 12 of PEPUDA. 400 cassim 2015 SAO 333. 401 cassim 2015 SAO 333. 402 Davey R "Dismissals for Social Media Misconduct" 2012 De Rebus 1-94. 56 misconduct. Accordingly, PEPUDA should be amended to include penalties for social media-related misconduct. Its failure to provide specific penalties for social media- related misconduct provides employers and the courts with new regulatory challenges in relation to their determination of fair and appropriate penalties against employees who face dismissal or other disciplinary procedures for social media- related misconduct. 3.6 Occupational Health and Safety Act The OHSA was promulgated in 1993 and came into force on the 1 January 1994. The OHSA seeks to ensure that a safe and healthy working environment is accessible to all employees.403 Therefore, an employer has a legal duty to his employees to create a safe and healthy working environment.404 Any form of social media-related misconduct in the workplace creates a workplace that is hostile and psychologically damaging to both employers and employees.405 The employer must take the necessary steps to curb social media-related misconduct in the workplace.406 An employer who fails to take the necessary steps to ensure a safe and healthy work environment contravenes the OHSA.407 An employer who fails to comply with the OHSA could be fined an amount not exceeding RlOO 000 and/or up to two years imprisonment.408 Be that as it may, the OHSA does not expressly provide for the regulation of social media-related misconduct in the workplace. The OHSA does not have penalties for social media-related misconduct. Therefore, OHSA should be amended to provide specific penalties for social media-related misconduct in the workplace.409 Thus, specific penalties for social media-related misconduct could ameliorate possible adjudication and determination challenges that the employers face in relation to dismissal cases for social media-related misconduct in the workplace during office working hours. 403 Singh The South African Employers Regulation 31. 404 Section 8(1) of the OHSA. 405 Singh The South African Employers Regulation 31. 406 Singh The South African Employers Regulation 31. 407 Singh The South African Employers Regulation 31. 408 Section 23 of the OHSA. 409 Cell iers 2013 N Ky L Rev 588. 57 3.7 Compensation for Occupational Injuries and Diseases Act The COIDA regulates compensation schemes for employees who suffer injuries and diseases while executing their occupational duties at their workplaces. COIDA provides that employees are eligible for compensation for any work-related injuries sustained in the workplace due to negligence or fault on the part of the employer.410 The employee has to show a causal connection between the injury sustained and that it occurred during the course of the employment to successfully rely on COIDA.411 Some employees have previously successfully claimed psychological injury in the form of post-traumatic stress disorder as injury and received their compensation. 412 However, these cases did not include any element of social media- related misconduct.413 The right to claim compensation from the employer should be allowed if an employee suffered psychological injury.414 The employees' psychological injuries could have occurred as a result of the material they have been exposed to, or received on the employer's internal system or that was displayed on a computer screen.415 The COIDA does not provide that employees may claim for compensation for unlawful social media-related misconduct dismissals from the employer. This follows the fact that such arbitrary social media-related dismissals may cause psychological injuries to other employees in the workplace. The COIDA does not have penalties for social media-related misconduct. Accordingly, the COIDA should be amended to enact provisions that give effect to psychological injuries that may be caused by arbitrary social media-related misconduct dismissals in the South African workplace. The COIDA should also be amended to enact provisions for social media- related misconduct penalties. The main challenge is that there are no factors or guidelines that could be considered by employers and the courts when determining whether psychological injuries or other negative effects that stems from the 410 Section 5 of COIDA. 411 Section 5 of COIDA. 412 Urquhart v Compensation Commissioner (2006) 27 IU 96 (E). 413 Urquhart v Compensation Commissioner (2006) 27 IU 96 (E). 414 Section 50 of COIDA. 415 Section 50 of COIDA. 58 employee's social media-related misconduct are treated as any other injuries that covered by the COIDA. 3.8 The Protected Disclosure Act The Protected Disclosure Acf16 came into force on the 16 February 2001. The PDA provides procedures for employees to make protected disclosures where employers commit unlawful or irregular conduct in public and private sectors in the workplace.417 The PDA protects employees who disclose certain information from reprisals or occupational detriment when they make a protected disclosure.418 A protected disclosure is defined as disclosure of information relating to the unlawful conduct of the employer by the employees.419 The employees who make a protected disclosure have reason to believe that the information concerned shows the following: (a) that a criminal offence has been committed, is being committed or is likely to be committed; (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; ( c) that a miscarriage of justice has occurred, is occurring or is likely to occur; (d) that the health or safety of an individual has been, is being or is likely to be endangered; (e) that the environment has been, is being or likely to be damaged; (f) unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; or (g) that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be deliberately concealed.420 416 Protected Disclosure Act26 of 2000 (PDA). 417 Section 2(1)(a) of the PDA. 418 Section 2(1)(a) of the PDA. 419 Section 1 of the PDA. 420 Section 1 of the PDA. 59 The PDA provides that a protected disclosure made by an employee should not lead to occupational dismissal by his or her employer.421 Therefore, if an employee were to make a protected disclosure using social media, it would be unfair to dismiss such an employee for social media-related misconduct.422 Any such protected disclosure by the employee must be made in good faith.423 Failure to make a protected disclosure in good faith may result in social media-related misconduct on the part of the employee. Nonetheless, strict rules and procedures stipulated in the PDA must be followed before a social media-related disclosure is treated as a protected disclosure. For instance, protected disclosures are usually done to certain bodies or parties under the PDA.424 In this regard, it is must be noted that mere accusations that are made by an employee against the employer on a social media platform do not automatically qualify as protected disclosure as contemplated in the PDA.425 This status quo is worsened by the fact that the PDA does not provide penalties for social media-related misconduct in the workplace. It is submitted that the PDA should be amended to enact provisions that expressly prohibit malicious and unlawful protected disclosures via social media platforms in the workplace. The absence of such prohibition presents a regulatory challenge for employers as some employees may post malicious and unlawful protected disclosures via social media platforms in the workplace and escape liability under the PDA. 3.9 The Regulation of Interception of Communications and Provision of Communication-Related Information Act The RICA came into effect on the 1 July 2011.426 The RICA repealed and replaced the Interception and Monitoring Prohibition Act427 The IMP prohibited the 421 Section 3 of the PDA. 422 Ashurst 2016 Misconduct by Social Media Global Perspective https://www.ashurst.com/ en/ news-and-insights/legal-updates/misconduct-by-social-media-a- global-perspective/ accessed 13 July 2016 1. 423 Section 6(1)(a) of the PDA. 424 Sections 5 to 8 of the PDA. 425 Sections 5 to 9 of the PDA. 426 Adams and Adams 2013 What is Rica? http://www.polity.org.za/article/what-is-rica-2013-08- 23 accessed 13 March 2016 1. 427 The Interception and Monitoring Prohibition Act 127 of 1992 (IMP). The Act prohibited the interception of certain communications and the monitoring of certain conversations. It also provided for the interception of postal articles and communications and the monitoring of 60 interception of confidential information.428 However, the IMP could not be used in the private sphere such as the workplace since employers and employees could not use its provisions.429 The pre-amble of RICA discusses the regulation of the interception and monitoring of communications.430 The RICA also discusses the execution of directions and entry warrants by law enforcement officers.431 The RICA defines interception as acquiring contents of any communication through the use an interception device.432 The interception device serves to avail to a person a portion or all of the contents of a communication that excludes the sender or recipient of the communication. 433 In the employment context, the employer could intercept the social media communications of the employee to evaluate whether there was any form of social media-related misconduct committed.434 The RICA435 provides that no person may intentionally and unlawfully intercept or attempt to intercept or hire any other person to intercept at any place in South Africa, any communication in the course of its occurrence or transmission. It is evident that no person may intentionally acquire or access the contents of another person's communication by using an interception or monitoring device.436 A violation of the privacy of an employee may occur437 as the RICA allows statutory exemption for intercepting the communications of the employee by the employer in the conversations in the case of a serious offence or if the security of the Republic of South Africa is threatened and to provide for matters connected therewith. 428 Section 2 of the IMP. 429 Mischke C "Social networks, Privacy and Dismissal-Facebook, Twitter et al : The Employer's Reputational Risk" 2011 Contemporary Labour Law 11-17. 430 Luck R "Walking a Fine Line Between Crime Prevention and Protection of Rights" 2014 De Rebus 1-94. 431 Luck 2014 De Rebus 1. 432 Section 1 of the RICA. 433 Section 1 of the RICA. 434 Pistorius T "Monitoring, Interception and Big Boss in the Workplace: Is the Devil in the Details?" PER 2009 1-26. 435 Section 2 of the RICA. 436 Mischke 2011 Contemporary Labour Law 13. 437 Poore M "A Call for Uncle Sam to get Big Brother Out of Our Knickers: Protecting Privacy and Freedom of Speech Interests in Social Media Accounts" 2013 N Ky L Rev 507-527. 61 workplace.438 Consequently, this could negatively affect the employees' right to privacy in the workplace.439 The RICA also provides that any law enforcement officer may intercept any communication if he or she is: (a) a party to the communication; and (b) satisfied that there are reasonable grounds to believe that the interception of a communication of another party to the communication is necessary.440 Within this context, one might notice that an employer is a party with interest in the communication. Employers have several legitimate reasons to monitor employees' social media use.441 For instance, productivity concerns and the employer's fiduciary responsibility to stockholders to protect assets belonging to the company.442 Employers monitor communications to ensure that physical assets such as property and files are secured.443 The loss of these assets could result in a decrease in company value and confidence in the investment community due to social media- related misconduct.444 The RICA permits an employer to intercept any indirect communication in the course of carrying on business.445 Modiba suggests that an employer must seek prior consent from employees to intercept their social media communications.446 The employees must sign a written agreement in respect of such consent.447 Pistorius448 argues that consent from employees can be obtained through express written electronic consent. In Goosen v 438 Section 3 of the RICA. 439 Poore 2013 N Ky L Rev 507. 440 Section 4(2) of the RICA. 441 Friedman BA and Reed LI "Workplace Privacy: Employee Relations and Legal Implications of Monitoring Employee E-mail Use" 2007 Employ Respons Rights Journa/75-83. 442 Friedman and Reed 2007 Employ Respons Rights Journa/76. 443 Friedman and Reed 2007 Employ Respons Rights Journa/76. 444 Friedman and Reed 2007 Employ Respons Rights Journa/76. 445 Section 6(1) of the RICA. 446 Modiba M "Intercepting and Monitoring Employees E-mail Communications and Internet Access" 2003 SA Mere LJ 363-371. 447 Modiba 2003 SA Mere LJ 366. 448 Pistorious 2009 PER 7. 62 Carolines Frozen Yoghurt Parlour (pty) Ltd and another,449 in his disciplinary inquiry, the applicant recorded the telephone conversation of his employer without consent of the employer and the chairperson of the inquiry. The applicant was subsequently dismissed after the inquiry. The employer had to prove that there was no fair hearing and that the chairperson was biased.45° Furthermore, the employer stated that the telephone conversation was recorded unlawfully and thus infringed his right to privacy. The court held that the interception of the employer's communications without prior consent was an infringement of his right to privacy. The researcher submits that the court's verdict was correct and the employee's dismissal was fair and justified. Similarly, had the employee intercepted the employer's communications on a social media-platform without prior consent and thereafter, dismissed for social media-related misconduct, the dismissal would have been fair and justified. Some employers justify the interception of the social media communications of employees as guarding their business interests such as the right to a good name.451 The RICA provides the requirements to establish the unauthorised use of the computer system and to establish the existence of facts.452 For instance, the employer may check the unauthorised sites visited by employees. If the internet has been used for unauthorised purposes and exposing any risks and illegitimate use of the computer system of employers, that could amount to a misconduct.453 In CMC Woodworking Machinery (pty) Ltd v Pieter Odendaal Kitchens (KZD),454 dismissal of employees was confirmed by the CCMA based on social media-related misconduct. The plaintiff in the action had sued the defendant for R126 700, being the purchase price for a woodwork machine, the defendant had argued otherwise and pleadings 449 Goosen v Carolines Frozen Yoghurt Parlour (Pty) Ltd and another 36 {1995) 16 IU 396 (IC) ( Goosen case). 450 Goosen case 399. 451 Singh The South African Employer's Regulation 34. 452 Section 6(1) of the RICA. 453 Whitear-Nel N and Subramanien D "A Fresh Perspective on South African Law Relating to the Risks Posed to Employers When Employees Abuse the Internet" 2013 South African Journal of Labour Relations 9-23. 454 CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens (KZD), (unreported case no 6846/2006, 3-8-2012) ( CMC Woodworking case). 63 were exchanged.455 The court allowed substituted services456 and the applicant sent the defendant a notice to settle the matter through Facebook, wherein the comments were considered as defamatory. The court granted interdicts against the applicant ordering him to remove offensive or the defamatory content on social media. The courts may also grant extension of the claim for damages as a result of defamatory comments on a social media platform by employees or other persons.457 Employers or other users can access the content or information posted on a social media platform by employees.458 The employer can obtain this information when he or she intercepts the communication of the employee.459 Some information may be detrimental to the employee, if it is established that it concerns the employer when it defames the employer's company name.460 Monitoring by employers is detrimental to employees' privacy,461 for instance, when employers monitor activities of employees beyond social media communications, the right to privacy of employees may be violated.462 Employees believe that privacy will not exist in the workplace if the employers' ability to monitor employees' activities is not restricted.463 It is for such reasons that there should be social media regulation to avoid the conflicting interests of employers and their employees. 455 CMC Woodworking case 4. 456 CMC Woodworking case 5. Substituted services is ordered when the defendant is believed to be in the Republic of South Africa but one of the normal forms of service set out in the rules cannot be effected. The court then gives directions authorising some form of 'substituted service'. 457 Whitear-Nel and Subramanien 2013 South African Journal of Labour Relations 18. 458 Chapman C 2009 The History and Evolution of Social Media http://www.webdesignerdepot.com/ 2009/10/the-history-and-evolution-of-social-media/ accessed 12 February 2016 1. 459 Cilliers 2013 N Ky L Rev 584. 460 Chapman 2009 http://www.webdesignerdepot.com/2009/ 10/the-history-and-evolution-of- social-media/ accessed 12 February 2016 1. 461 Hornung MS "Think Before You Type: A Look at Email Privacy in the Workplace" 2006 Fordham J. Corp. & Fin. L. 115-160. 462 Friedman and Reed 2007 Employ Respons Rights Journal 81. 463 Hornung 2006 Fordham J. Corp. & Fin. L. 116. 64 In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In Re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others,464 Langa DP held that: "When people are in their offices, in their cars or on mobile phones, they still retain a right to be left alone by the State unless certain conditions are satisfied". This statement shows that employees' right to privacy should be protected in the workplace. This guarantees the employee's right to privacy although this right is limited to a certain extent by the limitation clause as provided for in the Constitution.465 In Phillip Neethling v Southern African Fruit Terminals,466 an employer obtained information in a folder marked "personal" from an employee's work computer. The employer did not have an electronic communication policy that permits him to obtain an employee's information without consent. The CCMA held that the evidence obtained invaded the employee's privacy and that employees are entitled to use work computers for personal purposes. The evidence obtained by the employer was disregarded. The case did not directly deal with social media-related misconduct, but it shows how the employer can violate an employee's privacy in the workplace. It can be concluded from this case that employers can encroach upon the right to privacy of employees although it is not right to do so unless the employee gives prior consent.467 The employer should respect the privacy of his or her employees particularly regarding the internet communications of employees, unless there is a sound reason to believe that there is misuse of social media communications from the employee.468 Thus, the RICA should balance the interests of both the employers 464 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (pty) Ltd and Others: In Re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 BCLR 1079 (CC). 465 Section 36 of the Constitution. 466 Phillip Neethling v Southern African Fruit Terminals (unreported case) CCMA Durban,Case No.KN-4881-04. 467 Section 5(1) of the RICA. 468 Ciocchetti CA "The Eavesdropping Employer: A Twenty-First Century Framework for Employee Monitoring" 2001 American Business Law Journal285-369. 65 and employees.469 For instance, the RICA should be amended to provide specific penalties for social media-related misconduct against employees. On the other hand, it must prohibit unlawful interceptions of employees' social media communications by employers to avoid conflict of interests and other related challenges in the South African workplace. This could curb the unfair and unlawful dismissals of employees for social media-related misconduct in the South African workplace. 3.10 The Protection of Personal Information Act The POPI protects individuals' personal information, which is processed by private and public bodies in South Africa.470 However, the personal information that is on social media platforms is not adequately regulated under POPI.471 The POPI defines personal information as any text, voice, sound or image message sent over an electronic communications network that is stored in the network.472 The POPI prohibits the negligent disclosure of private information by employees.473 The personal information of the data subject may only be processed if the following is done: (a) the data subject consents to the processing; (b) processing is necessary to carry out actions for the conclusion or performance of a contract to which the data subject is a party; ( c) processing complies with an obligation imposed by law on the responsible party; ( d) processing protects the legitimate interest of the data subject and (e) processing is necessary for pursuing the legitimate.474 469 Davey 2012 De Rebus 80. 470 Vries M and Moosa N "The Laws Around Social Media : Student Feature" 2015 Without Prejudice 1-92. 471 Vries and Moosa 2015 Without Prejudice 40. 472 Section 1 of the POPI. 473 Swales L "Protection of Personal Information: South Africa 's Answer to the Global Phenomenon in the Context of Unsolicited Electronic Messages (spam)" 2016 SA Mere LJ 49, 50-84. 474 Section 11(1) of the POPI. 66 The employer should use the requirements stated above to process personal information of the employee only if there is reason to believe that the employee has committed a social media-related misconduct in the workplace.475 The employee should give consent to the processing of such personal information.476 The POPI allows personal information to be processed if the employee gives consent.477 The POPI further provides that a person who intentionally and without authority interferes with data in a way which causes such data to be modified, destroyed or causes it to be ineffective, is guilty of an offence.478 Therefore, if an employer interferes with the social media profiles of the employee in the workplace, the employer may be guilty of an offence.479 The processing of personal information of the employee by the employer without consent must be sanctioned by the courts.480 In Smith case, 481 the employer accessed and processed the personal information of the employee without consent from such employee. According to Roos,482 it is accepted that data processing an individual's personal information causes a threat to an individual's right to privacy.483 Therefore, the employee's right to retain personal information was violated. The POPI does not have specific provisions on social media-related misconduct and does not have penalties for social-media related misconduct. Furthermore, the POPI does not provide how collecting, processing and use of personal information on social media platforms should be dealt with.484 The POPI should be amended to specifically regulate social media-related misconduct in the workplace. Employees should also guard against the information that they post 475 Singh The South African Employer's Regulation 34. 476 Section 5(1) of the RICA. 477 Padayachee C Employee's Right to Privacy versus The Employer's Right to Monitor Electronic Communications in the Workplace (LLM-dissertation University of KwaZulu-Natal 2015) 68. 478 Section 86(2) of the POPI. 479 Celliers 2013 N Ky L Rev 580. 480 Celliers 2013 N Ky L Rev 580. 481 Smith v Partners in Sexual Health (non-profit) (2011) 32 IU 1470 (CCMA) See related comments in the introductions in Chapters One and Two of this dissertation. 482 Roos A "Data Protection: Explaining the International Backdrop and Evaluating the Current South African Position" 2007 SAU 400-436. 483 Roos 2007 SAU 421. 484 Vries and Moosa 2015 Without Prejudice 40. 67 on social media platforms.485 In this regard, employees should exercise caution to avoid incurring social media-related misconduct penalties or sanctions from their employers. The absence of provisions that expressly deal with social media-related misconduct in the POPI presents both employers and employees with compliance challenges that could result in unfair dismissals and employers failing to combat misuse of social media by employees in the workplace without interfering with their personal information. 3.11 Electronic Communications and Transactions Act The Electronic Communications and Transactions Acf86 regulates electronic communications and transactions in the public interest for employers and employees487 by removing and preventing barriers to electronic communications and transactions in South Africa. 488 The ECTA defines personal information as amongst others information relating to the race, gender, sex, pregnancy, marital status, national, disability, religion, conscience, belief, culture, language and birth of the individual.489 The employer may lawfully collect the personal information of the employee.490 However, an employer can only collect information that is reasonably necessary to the lawful purpose. 491 An employer may not access all the information on the employee's social media platform as it may amount to the invasion of such employee's privacy in cases where the employee did not give consent to access such information. The ECTA also stated that a data controller must have the express written permission of the data subject. 492 Such permission is needed prior to the collection, collation, processing or disclosure of any personal information on that data subject unless it is indicated otherwise in the legislation.493 An employer would be 485 Vries and Moosa 2015 Without Prejudice 40. 486 Electronic Communications and Transactions Act25 of 2002 (ECTA). 487 Section 2(1) of the ECTA. 488 Section 2(1)(d) of the ECTA. 489 Section l(a) of the ECTA. 490 Celliers 2013 N Ky L Rev 580. 491 Celliers 2013 N Ky L Rev 580. 492 Section 51(1) of the ECTA. 493 Section 51(1) of the ECTA. 68 guilty of an offence if he or she collects data without the written permission of the employee from social media platforms and uses such information to dismiss an employee for social media-related misconduct. There is uncertainty whether the information published on social media platforms still retain legal protection or not.494 The uncertainty is created because information posted on social media platforms is sometimes accessible to the public.495 Possibilities exists that an employer may access personal information belonging to the employee publicly where the employer has access to the personal information of such employee on social media platforms.496 Access to social media platforms may be obtained from service providers.497 An employer can dismiss an employee if it is found that an employee committed social media-related misconduct such as posting defamatory comments about the employer and/or other employees. Service providers cannot be held accountable where the employer when accessing personal information of the employee causes any infringements.498 The ECTA does not have specific provisions for social media-related misconduct. The ECTA also does not provide any penalties for social media-related misconduct. It is for these reasons that the ECTA should be amended to include provision on the regulation of social media-related misconduct. This will curb the unlawful interception of personal information on social media by employers that may lead to dismissal for social media-related misconduct. Furthermore, additional penalties should provide for non-compliance with the conditions set by ECTA for social media-related misconduct. This will curb potential challenges involving the imposition of harsh penalties and/or unfair dismissals of employees for social media-related misconduct in the South African workplace. 494 Celliers 2013 N Ky L Rev 581. 495 Celliers 2013 N Ky L Rev 581. 496 Celliers 2013 N Ky L Rev 582. 497 Celliers 2013 N Ky L Rev 582. 498 Celliers 2013 N Ky L Rev 582. 69 3.12 The Promotion ofA ccess to Information Act The Promotion of Access to Information Acf99 gives effect to the Constitutional right of access to any information held by the State. Furthermore, it protects employers and employees' rights by allowing access to information that is held by others. The PAIA states that an individual may request or gain access to any record, including personal information500 that is held by the public entity. 501 Furthermore, if the record is required for the exercise of any of the requester's rights. 502 An employer may gain access to an employees' personal information on social media to protect his or her rights such as a right to a good name. Subsequently, an employer may dismiss an employee for social media-related misconduct if the personal information obtained amounts to social media-related misconduct in the workplace such as posting defamatory comments about the employer. The PAIA prohibits access to a third party's personal information, if such access violates the third party's rights. 503 When employers request information of the prospective employee's social media platforms without consent, it infringes upon the employee's right to privacy. Employers must comply with the provisions of the PAIA when making a request for an applicant or employee's personal information. 504 PAIA does not provide regulation on social media. Accordingly, the PAIA should be amended to expressly prohibit social media-related misconduct in the South African workplace and provide the relevant penalties in respect thereof. This could prevent employers from unlawfully accessing their employees' personal information on social media platforms and curb the challenges involving the dismissals of employees for social media-related misconduct in the South African workplace. 499 Promotion of Access to Information Act2 of 2000 (PAIA). 500 Section 11(2) of the PAIA. 501 Section 1 of the PAIA. Public body means: (a) any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or (b) any other functionary or institution when; (i) exercising a power or performing a duty in terms of the Constitution or a provincial Constitution; or (ii) exercising a public power or performing a public function in terms of any legislation. 502 Section 11(1) of the PAIA. 503 Section 34(1) of the PAIA. 504 Celliers 2013 N Ky L Rev 581. 70 3.13 Film and Publications Act The Film and Publications Act5°5 provides that a person that distributes hate speech on social media with knowledge that he or she is advocating for hate speech is guilty of an offence. 506 Furthermore, the hatred advocated for on social media has to be based on race, ethnicity, gender or religion and constitute incitement to cause harm. 507 The FPA makes exception for publication that is made bona fidt08 but it does not afford the same provisions for social media-related misconduct. In Dauth and Brown and Weirs Cash and Carry,509 an employee was dismissed for sending racist email to other employees through the company's email facility. The employee made derogatory comments regarding Jewish shareholders and directors of the employer's business. The employee argued that he was in a state of diminished responsibility because of a drug prescription intake for depression and related illnesses. The CCMA held that the email remarks relating to Jews was "a gross and sickening example of racism". The CCMA held that the dismissal of the employee was fair. The case did not directly deal with social media-related misconduct but shows how employees may advocate for hate speech. The hate speech may lead to dismissal for social media-related misconduct in the South African workplace. Recently, an employee (Riaan Lucas) of South African Wine Institute was scrutinised on social media for posting a racist photograph. 510 The photograph related to the death of former Springbok rugby player Joost van der Westhuizen. Such photograph was posted on Facebook soon after the announcement of Van der Westhuizen's death. 511 Lucas wrote: "Joost is vrek" (Joost is dead) with a photograph that read "Me when I hear a white man has died RIP Joost". The employee removed the post after other social media users questioned him about it. This conduct could be 505 Films and Publications Act65 of 1996 (FPA). 506 Section 29(1)(c) of the FPA. 507 Section 29(1)(c) of the FPA. 508 Section 29 of the FPA. 509 Dauth and Brown and Weirs Cash and Carry2002 (8) BALR 837 (CCMA) (Dauth case). 510 Nienaber M 2017 Racist Joost Meme Shocks http://www. news24 .com/ SouthAfrica/ News/ racist-joost-meme-shocks-20170207 accessed 10 February 2017 1. 511 Nienaber 2017 http://www.news24.com/SouthAfrica/News/ racist-joost-meme-shocks- 20170207 accessed 10 February 2017 1. 71 regarded as social media-related misconduct and could warrant a dismissal, as it entails racist comments. 512 The FPA does not make provision and penalties for social media-related misconduct. However, the FPA should provide for social media-related misconduct and enact penalties for hate speech advocated through social media by employees. Furthermore, the FPA should be amended to provide a defence on cases pertaining to social media-related misconduct when an employer assumes that an employee has advocated hate speech on social media. Moreover, the provision of specific penalties for social media-related misconduct in the FPA could enable both the employer and employee to know prohibited conduct and/or practices to avoid unfair dismissals and related problems in the workplace. 3.14 Conclusion The use of social media in the workplace is increasing513 and this has created several regulatory challenges in the South African workplace. For instance, when employers monitor social media activities of employees without prior consent, this can be regarded as an infringement of their right to privacy in the workplace. Furthermore, employers must not request their prospective employees' information on social media platforms as this could be discriminatory, especially, when the employer fails to hire such persons based on their social media posts. As indicated above, various legislation deals with the employment relationship in the South African workplace. However, the current labour laws do not have specific provisions for social media- related misconduct. Consequently, these laws should be amended to enact adequate provisions on the regulation of social media-related misconduct in South Africa. This could combat legislative and Constitutional challenges that are associated with the arbitrary social media-related misconduct dismissals in the South African workplace. 514 The aforesaid labour legislation and the related legislation should be 512 Nienaber 2017 http://www.news24.com/SouthAfrica/News/racist-joost-meme-shocks- 20170207 accessed 10 February 2017 1. 513 Celliers 2013 N Ky L Rev 592. 514 Celliers 2013 N Ky L Rev 592. 72 amended to provide penalties for social media-related misconduct in the South African workplace. 73 CHAPTER FOUR CONSTITUTIONAL CHALLENGES ASSOCIATED WITH THE DISMISSAL OF EMPLOYEES FOR SOCIAL MEDIA-RELATED MISCONDUCT 4.1 Introduction The South African Constitution515 is the supreme law of the Republic and any law or conduct that is inconsistent with it is invalid.516 A dismissal for social media-related misconduct would be an unfair dismissal if it does not constitute a serious misconduct. 517 A serious misconduct is conduct that could warrant a dismissal prima facie such as when an employee posts defamatory, racial and prejudicial remarks about an employer or other employees on his or her social media platform. 518 Such misconduct could subsequently damage the name of the employer and other employees in the workplace. The Constitution states that everyone has the right to fair labour practices. 519 An unfair dismissal is a dismissal where an employer fails to provide a justifiable reason for the dismissal of the employees.520 Such justifiable reasons usually relate to the conduct or capacity of an employee521 or the operational requirements of the employer.522 Therefore, dismissal of employees without justifiable reasons would constitute an unfair labour practice in terms of the South African Constitution. This chapter analyses the rights to dignity,523 privacy,524 freedom of expression525 and freedom of association526 in relation to the Constitutional challenges associated with the dismissal of employees for social media-related misconduct in South Africa. To this end, Constitutional challenges such as employers' intrusion of employees' personal social media use which affects 515 Constitution of the Republic of South Africa, 1996 (Constitution). 516 Section 1 of the Constitution. 517 Section 2 of the Constitution. 518 Davey R "Dismissals for Social Media Misconduct" 2012 De Rebus 1-94. 519 Section 23( 1) of the Constitution. 520 Section 188(a) of the Labour Relations Act66 of 1995 (LRA). 521 Section 188(a)(i) of the LRA. 522 Section 188(a)(ii) of the LRA. 523 Section 10 of the Constitution. 524 Section 14 of the Constitution. 525 Section 16 of the Constitution. 526 Section 18 of the Constitution. 74 the employee's rights to freedom of expression, dignity, freedom of association and privacy by restricting the use of social media in the workplace are discussed.527 4.2 Constitutional Rights Affected by the Dismissal of Employees for Social Media-Related Misconduct 4 .2.1 The right to privacy under the Constitution The right to privacy is a Constitutionally protected right in South Africa. 528 There is a two-stage enquiry done by the courts for the protection of the right to privacy in South Africa. This enquiry is conducted to assess whether there was a violation of the right to privacy.529 The scope of the right to privacy is analysed to determine whether conduct, in this context social media-related misconduct, has infringed the right to privacy. 530 If it is established that there was an infringement, it is determined whether such infringement is justifiable in accordance with the limitation clause. 531 The right to privacy is protected by adio iniuriarum to remedy the breach of such right by offenders under common law.532 The common law protection of the right to privacy involves a single enquiry by the courts that assesses whether the invasion of privacy is unlawful.533 A person's right to privacy entails that a person should have control over his or her affairs, free of unsolicited intrusions by employers and other employees.534 The intrusions may arise when an employee is monitored in the workplace. The employer sometimes views the information obtained from monitoring the employee as social media-related misconduct.535 Privacy can be defined as an individual condition of life 527 Abril PS, Levin A and Del Riego A "Blurred Boundaries: Social Media Privacy and the Twenty- First-Century Employee" 2012 American Business Law Journal63-124. 528 Section 14 of the Constitution. 529 Currie I and De Waal J The Bill of Rights Handbook 6th ed (Juta Cape Town 2013) 295. 530 Currie and De Waal The Bill of Rights Handbook 295. 531 Section 36 of the Constitution. 532 Currie and De Waal The Bill of Rights Handbook 295. 533 Currie and De Waal The Bill of Rights Handbook 295. 534 Neethling J, Potgieter JM and Visser PJ Neethling's Law of Personality 2nd ed (Lexis Nexis Durban 2005) 31. 535 Davey 2012 De Rebus 80. 75 that is characterised by seclusion from the public and publicity. 536 The establishment of the right to privacy has its origins in the proclamations stated in more than a century ago by Brandeis and Warren. 537 Brandeis and Warren submit that privacy is an individual's absolute right to be left alone.538 In South Africa, the right to privacy enjoys protection in terms of both the common law and the Constitution. However, the right to privacy was not always consistently protected in the South African workplace. 539 The need to protect the right to privacy in South Africa can be traced back as early as 1950s.540 The actio iniuriarum was recognised by the Roman jurists who discovered a number of remedies for the impairment to Constitutional rights. 541 The actio iniuriarum was provided for a wrong that could be interpreted as an impairment of the right to privacy such as invasions of the sanctity of another person's home.542 However, in those days there were no social media platforms, therefore, an employee could not be dismissed for social media-related misconduct. 543 Prior to the advent of social media, employees would voice their objections at social gatherings, usually at the end of the workday or during a break at work. 544 Nowadays, derogatory remarks, which at one time may have been made in person and are sometimes posted on an employee's social media page.545 In the 19th century, employers adopted a laisser-faire approach546 to employees' use of social 536 Bernstein v Bester 1996 2 SA 751 (CC) 94. 537 Baum KJ "E-mail in the Workplace and the Right of Privacy" 1997 Villanova Law Review 1-32. 538 Baum 1997 Villanova Law Review 32. 539 Gondwe M The Protection of Privacy in the Workplace: A Comparative Study(LLD-dissertation University of Stellenbosch 2011) 52. 540 Burchell J "The Legal Protection of Privacy in South Africa: A Transplantable Hybrid" 2009 Electronic Journal of Comparative Law 1-26. 541 Burchell 2009 Electronic Journal of Comparative Law 6. 542 Burchell 2009 Electronic Journal of Comparative Law 6. 543 Mangan D "A Platform for Discipline: Social Media Speech and the Workplace" 2015 Osgoode Legal Studies Research 1-26. 544 Mangan 2015 Osgoode Legal Studies Research 3. 545 Mangan 2015 Osgoode Legal Studies Research 3. 546 Laisser-faire approach means the unwillingness to get involved or influence other people's activities. 76 media547 because there was no abuse of social media by employees in the South African workplace. Consequently, employees were encouraged by employers to become comfortable and familiar with new technologies and to explore the World Wide Web and/or other relevant internet-related technologies. 548 Two reasons were cited for the adoption of the laisser-faire approach. Firstly, some employers held that the laisser-faire approach could enable the employees to perform their workplace duties much better.549 Secondly, the laisser-faire approach was adopted because employers were ignorant of the inherent risk that social media imposes on their workplace duties and businesses of the employers.550 Moreover, various intrusions and/or contraventions of employees' right to privacy by employers were not prevalent yet since employers were not monitoring the activities of their employees on social media platforms in the workplace. 551 However, employers that monitor social media activities of their employees552 in the workplace during office working hours easily violate the employees' right to privacy.553 If the employer invades the plaintiff's right to privacy, a careful assessment of such an invasion of the right to privacy has to be made by the court. Watermeyer AJ rejected the argument that the right to privacy should be equated with the right to dignity.554 Nonetheless, the courts or any tribunal must carefully asses all the relevant factors when determining the appropriate sanctions against employers that violate their employees' right to privacy while trying to combat social media-related misconduct in the workplace. This could be supported in part, by the fact that the O'l