Emerging Labour Cases in the Era of ICT

SOCIAL networks or blogs have changed the way we communicate, the way we are informed and how we do business daily.

Who could have thought that social networks and media sites such as Facebook, Twitter, LinkedIn and MySpace will become part of our lives. Statistics from the Social Bakers Website revealed that 172 100 Namibians are Facebook users. Let us not turn a blind eye to the fact that a lot of employees just like anyone else read and post comments or chat on a continuous basis on these sites. This is sometimes done during or after working hours. What is worse is that employees nowadays use social networks and blogs to air their grievances to make racist and unwelcome statements towards their superiors, co-workers and others.The majority of employees don’t know that these platforms are not to be seen as private and that employers can act against any conduct which might occur on these websites. Employees have a common law duty to act in good faith to their employer’s best interests. They may not do anything that can harm the employer’s business; including posting negative comments on social networking media sites. Countries with advanced ICT legal and policy frameworks including South Africa has dealt with labour cases such as Sedick & Another v Krisray (Pty) Ltd [2011] JOL 27445 (CCMA) and Fredericks v Jo Barkett Fashions (2011) 20 (CCMA). In Sedick and Another v Krisray two employees were dismissed for bringing the employer’s name into disrepute in the public domain. They posted derogatory comments about the business owner and members of his family, on one of the employee’s Facebook wall. The dismissed employees then referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). They claimed that the employer’s name had not been brought into disrepute because neither the company, nor the specific individuals’ names had been mentioned. They further claimed that their privacy had been breached by the employee who accessed their Facebook wall. The CCMA highlighted very important issues concerning privacy on the Facebook sites. It was held that everyone is free to create profiles and connect with friends. Another issue which is very interesting is the fact that privacy settings are at the disposal of the users. The settings make it possible for users to limit the information seen by a casual visitor. If no access restrictions have been set by the users, anyone who accessed the user’s profile will be able to see all wall posts and comments made. It was also held that anyone coming across the employee’s Facebook profiles would be aware of the identity of the employer and that created potential for damage to the company’s reputation.In a similar case in Australia Damien O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311, Fair Work Australia (FWA) upheld the right of an employer to dismiss an employee over a crude and threatening Facebook rant against a manager posted after hours from his home computer. In this case the employer did not have any social network policy, however the FWA held that even without the handbook, ‘common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred’.It was further held that employers may take action against the employees for inappropriate work-related posts. It does not matter whether the employer is named in the post or not. It was also held that blocking an employer from reading a post may not be a defence as other employees may read the post. The act of blocking certain people from reading certain posts may be evidence of the employee’s knowledge of wrongdoing.In all these cases employees intentionally posted offensive statements about their employer on a social network website. In each case employees were fairly dismissed, because the Commissioner held that their privacy was not infringed upon when their employers accessed their Facebook accounts.The Commissioner found that when considering the employees’ claim that their privacy had been invaded, the South African Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 were relevant in both cases. The Act provides that ‘any person may intercept any communication if the person 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 public domain and the dismissed employees had not utilised the security measures to block access to their profiles, therefore any person could have accessed the information that they published. It was also held that by failing to use privacy settings, the employees abandoned their right to privacy and forfeited the protection offered by the Act of 2002.What transpired from the above-mentioned cases is a learning experience for Namibia. A dismissal with the same circumstances will be regarded as fair, provided that the employer follows the correct procedures and the evidence used against the employees have not been illegally obtained.It is imperative that employees have Monitoring and Interception of Communication Policies and Social Networking Media Policies in the workplace. In addition it will make no sense for companies to create these policies if they do not sensitise employees of their responsibility when posting comments or information on the websites.They also need to be taught how to restrict access to their social networking sites such as Facebook and to recognise the potential dangers in making comments which could be perceived by others to be harmful.The Namibian Communication Act of 2009 is a piece of legislation which could be used as a yardstick to govern interception in the workplace, but Part 6 on Interception of Telecommunications has not yet been implemented in Namibia. I suggest that the Part be brought up to speed to create an enabling environment for the Labour Commissioner once cases of this nature are brought before the labour courts.* Lena Kangandjela holds a B.Juris, LLB (Honours) from the University of Namibia and is currently pursuing a Master’s Degree in Information and Technology Law with the University of South Africa. She has been in the industry of ICT since 2010 serving as a director for Namibia Post and Telecom Holding.