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Social Media: Guidelines on the policy for employees using social media for non-business purposes 

Jan du Toit

 

About 17 years ago social media could have been described as printed media, radio and television. That was until we were introduced to the World Wide Web and all the wonderful things that we are now capable of from our desks without having to go to the library, the post office or even having to speak to somebody in person. It cannot be argued that the internet drastically changed the way we communicate and do business. 

 

During the past 10 years a number of social networks popped up and can best be described as addictive for some users. Facebook seems to be by far the most popular social networking platform followed closely by Twitter with a growing user base. It is reported that there are currently around 4.5 million Facebook users in South Africa, a number that has steadily grown from 3.8 million in 2005. 

 

These statistics may be good for Facebook, but what does it mean for employers? First of all there is the question of the productivity of employees that access Facebook and other social networking sites during office hours, as well as the associated infrastructure costs. It was recently reported by a well-known electronic communications surveillance service provider that in one company with 600 employees, 79% of the time of the employees were spent on social networking or gaming sites. One can just guess for how much longer that company will be able to do business. 

 

Another concern is the reputation of the business of the employer, or its employees, as a result of the information published on these sites. During the past couple of years we have seen a number of employees being dismissed as a result of defamatory information that was published on Facebook. In Sedick & another / Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA), both the operations manager and bookkeeper were dismissed for bringing the company's name into disrepute by publishing derogatory comments about the owner of the company on Facebook. The employees claimed that their right to privacy was breached by the employer by accessing their profiles on Facebook. They further argued that the comments they made did not identify any person or organization and could therefore not have damaged the reputation of the company.

 

The commissioner noted that in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002, “any person . . . may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence”. According to the Commissioner the internet is a public domain and Facebook users have the option to restrict access to their profiles as well as the information that they publish. In this case the dismissed employees did not block access to their profiles and as such any person could have accessed the information that they have published. The admissibility of the employer’s evidence was accordingly not an issue.

 

Turning to the comments that were posted the commissioner found that former or current employees of the company, that accessed the profiles of the two employees, would have had no difficulty in identifying the person they referred to in their communications. The dismissal of the two employees was therefore found to be fair.

 

From the above it is clear that a dismissal under such circumstances could be fair, provided that the employer follows the correct procedures and that the evidence used against the employee has not been illegally obtained in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act. It is therefore very important for employers to ensure that they have policies in place relating to the monitoring and interception of communication in the workplace. In addition to the company’s electronic communications policy it may be necessary to introduce another policy, the social media policy.

 

The social media policy will establish the principles for employees using social media for official and private purposes when the employee‘s affiliation to the employer is identified, known, or presumed. Such a policy must clearly define “social media” as well as guidelines on how to use these public platforms.

 

Employees using social media for official purposes should be aware of the following: 

  • The approved social media sites may only be used for officiall purposes.
  • The message that the company wants to bring across to other users must be clearly defined.
  • Postings must be kept legal, ethical and respectful.
  • Employees may not engage in online communication activities which could bring the company into disrepute.
  • Personal details of employees may not be disclosed.
  • Confidential information may not be disclosed.
  • Copyright laws must be adhered to.
  • Only the official approved logo of the company may be used.
  • The information that is published must be accurate and not confidential.
  • Statements to the media must first be approved by the employer.

 

Guidelines on the policy for employees using social media for non-business purposes:

  • Be clear on the use of company equipment or access to such sites and when this may be done.
  • Remind employees that internet and email communication may be monitored and intercepted as per the electronic communications policy of the employer.
  • Company information must be kept confidential.
  • The company name or logo may not be used on private profiles.
  • Colleagues, managers or information pertaining to the company may not be discussed on such platforms.
  • Employees must be advised to block access to their profiles for other users that they do not know.
  • The code of conduct of the company must be respected and considered as the guiding rule. Explain the consequences of failing to adhere to the social media policy of the company.

 

Employers are advised to carefully weigh up the benefits of social media against possible reputational damage and the abuse of company time and resources if access to such sites is allowed. 

 

 

 

The four-day working week and its impact on South African labour law: Are we ready?

 

If there is one thing we can learn from the COVID-19 pandemic, it is that many employees can work from anywhere and the “normal” 9 to 5 is no longer palatable to the upcoming workforce.

 

2022/07

By Hedda Schensema, Director and Tshepiso Rasetlola, Associate, Employment Law, Cliffe Dekker Hofmeyr

 

Over the past two years, many employers have had to reassess their working arrangement as a result of the pandemic. COVID-19 served as a test run on what the “new normal” has to offer in respect of the employment relationship and some working conditions. This has resulted in many employers successfully implementing a hybrid working arrangement and, in some instances, even requiring their employees to work from home indefinitely.

 

Many employers have indicated that they have experienced an increase in productivity and less stressed employees. On the flip side, however, employees have been unable to shut down and find themselves working round the clock and over and above their normal working hours. Considering the above, does this mean that South Africa is ready for a four-day working week post COVID-19?

Countries like Belgium and the UK have been able to successfully implement a four-day working week. However, given that South Africa is highly regulated in respect of its labour and employment laws, it has been argued that it would not be as seamless or easy an exercise to implement in comparison to these countries.

 

South Africa has numerous bargaining councils and sectorial agreements that regulate basic conditions of employment in the different sectors and include, inter alia, working hours. In order to be able to implement a four-day working week model, these agreements will have to be amended and their terms renegotiated to align with such a model.

 

This means an employer cannot change the terms and conditions of employment as recorded in these agreements without first consulting the relevant stakeholders, which include trade unions, workplace forums and individual employees.

 

This is a process that is consultative and which must result in consensus being reached on all aspects related to the arrangement. A failure to obtain consent prior to implementing the working model may result in a unilateral change in terms and conditions of employment by an employer. This could expose the employer to a referral by its employees in relation to unilateral changes to terms and conditions of employment.

 

In addition to this, the relevant labour and employment laws will have to be amended to cater for the working model from a regulatory point of view. Employers will need to consider their health and safety obligations towards employees in terms of the Occupational Health and Safety Act 85 of 1993, which requires an employer to, among other things, do everything reasonably practicable to protect employees’ health and safety in the workplace. In this regard, an employer’s obligations to ensure the health and safety of its employees extends to where the employee is working outside of the conventionally understood workplace, including a home office.

 

Although a four-day working week model sounds like a brilliant and exciting idea, employers will have to assess their respective sector and industry in order to establish whether it would be practicable or even feasible for its business model. Employers will also have to consider the applicable legislation and agreements regulating their sector and engage in a consultative process with the relevant stakeholders.

 

It is, therefore, perhaps premature to make a concrete finding that the four-day working week model would be possible in a highly regulated country like South Africa. We will therefore have to monitor its progress and assess from an individual employer’s business model as to whether the four-day working week would be appropriate.

 

For more information please contact Hedda Schensema at [email protected] or Tshepiso Rasetlola at [email protected]

 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com.

 

 

 

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