Be careful: These WhatsApp messages could get you fired

Employees should know which WhatsApp messages have the potential to cost them their jobs, to ensure that they do not share their opinions in a way that will breach their duty of good faith towards their employers.

According to legal firm Wright Rose-Innes, a dismissal is unfair in terms of the Labour Relations Act if an employer fails to provide a fair reason for the dismissal or if the dismissal did not follow a fair procedure.

Establishing whether there are fair reasons for dismissing an employee for misconduct, the employer must consider:

• did the employee contravene a rule or standard regulating conduct in the workplace
• if the rule or standard was contravened, was the rule a valid or reasonable rule or standard
• was the employee aware, or should reasonably be expected to have been aware of the rule or standard
• did the employer apply the rule consistently
• is dismissal an appropriate sanction for a contravention of the rule or standard?

These factors will accordingly have to be considered when deciding if an employee’s post or message on social media or even a WhatsApp group constitutes grounds for dismissal.

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Case study

The firm uses the example of a recent CCMA arbitration to decide whether an employee dismissed for a WhatsApp group message was fair or not.

In this case, a senior employee of a security company working at a client posted a message on the client’s WhatsApp group essentially advocating for employees not to be vaccinated against Covid-19.

The client company encouraged its employees to get vaccinated and incentivised employees that did. The dismissed employee took issue with this incentive, but his employer informed him that they, as a contracted security company to the client, were not involved in the policies of the client and accordingly instructed the employee to keep his opinions to himself.

Despite these instructions from the employer, he posted an article on the client’s WhatsApp group which included members of senior management, that discourages employees from being forced by their employers to be vaccinated.

The employer dismissed the employee due to this post and the employee referred the matter to the CCMA for arbitration.

The CCMA found that:

• Although the issue of vaccination is controversial, the client company was not imposing mandatory vaccinations, but merely incentivising employees to consider it.
• The employee, despite protesting that he was merely sharing information, clearly aligned himself with the article.
• The WhatsApp group had not been established for the purpose that the employee used it for and he was aware of it.
• Although there was no specific rule about not posting on the group, it was reasonable that an employer could not be expected to publish a rule for every possible transgression. In this case, the employer had warned the employee not to post as this could damage the relationship with the client.
• The employee overstepped his boundaries as it was not his place to warn the client or their employees about the client’s policies.
• The employee’s actions brought the employer into disrepute with the client, who was on the verge of terminating the security contract with the employer.

Accordingly, the CCMA held that given the circumstances, the dismissal of the employee was an appropriate sanction.

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What can we learn from this?

The firm says it is important to remember that social media and group information sharing platforms such as WhatsApp do not live outside the normal responsibility of an employee to have a duty of good faith towards their employer.

Employees should therefore take great care when posting and consider whether there could be any breach of this duty or reputational damage to their employer whenever they use such platforms or post information.

It does not mean that an employee can be fired for anything, but careful consideration is definitely advisable.

From an employer’s perspective, it is also recommended to formally regulate what the employer’s policies regarding social media and group communications are and so ensure employees are aware of these boundaries and can stick to them.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).