Regulating WhatsApp in South Africa: Can Employees Be Dismissed for WhatsApp Messages?

05 December 2023 ,  Bridgeton Petoors 2159

How widely and consistently do you use WhatsApp in your workplace? Do you have WhatsApp groups designated for work purposes? Can you freely express your opinion on certain topics while in those WhatsApp groups? Given the social media era that has dawned within the workplace, a crucial question that needs to be addressed is whether an employee may be fairly dismissed based on a WhatsApp message. This comment explores this question with the assistance of the 2022 CCMA ruling of Gerber / Xone Control Management.

“Employers should be prohibited from interfering with the personal and intimate affairs of its employee’s life. This rule should only be relaxed unless the employee’s social media communication directly relates to the employee’s work [and] causes reputational harm to the employer.”1

WhatsApp has grown to become an indispensable tool in the lives of over two billion people worldwide.2 Thus, with the advent of COVID-19 in 2020, WhatsApp saw an insurgence within the employment sector. It became an easy way for employers to carry over instructions and information to their employees. However, what happens when an employee uses this means of communication to share their personal views on a controversial topic that has the potential to interfere with the working environment?

In the recent 2022 Commission for Conciliation, Mediation and Arbitration (hereinafter “CCMA”) ruling of Gerber / Xone Control Management3, Fancourt, the respondent's client, had a policy which incentivised vaccination. The applicant, a senior manager of the respondent, posted a message in a WhatsApp group of Fancourt asserting that employees were legally entitled to refuse vaccination. Disciplinary action against the applicant was taken, which resulted in his dismissal. In this hearing, his manager stated that the post on WhatsApp created intolerance, breached the trust between him and the applicant, pushed the applicant's personal opinions and created animosity with the client which had caused a string of fallouts. 

Similarly, the CCMA held that an employer cannot be expected to publish a rule covering every eventuality, yet the applicant’s manager warned the applicant previously not to post his views on the group. Besides, the applicant was in a relatively senior position and should have been acutely aware of the huge damage such a post could potentially have caused the respondent’s business. It held further that the irrefutable evidence is that the post damaged the respondent’s standing with its client to such an extent that the client was on the verge of terminating the contract between them. The applicant, through his actions, brought the respondent’s name into disrepute. Thus, the CCMA ruled that the dismissal on the grounds of a WhatsApp message was a fair sanction in the circumstances.

It is important to note that each case will be assessed on its own merits. However, recent CCMA decisions suggest that the CCMA has a restrictive approach to social media postings, such as WhatsApp groups, status updates or any other form of social media, where it has a direct effect on the employment relationship between the employer and employee. It therefore becomes clear that a dismissal may be warranted. Consequently, employers are advised to ensure that a social media policy is in place in the workplace and that all employees are cognizant of and aware of the policy. We are living in a technological era, where the internet is ubiquitous and social media has become an integral part of daily life. Summarily, what is posted on social media can have a detrimental effect on an employment relationship, proving a dismissal on the grounds of a social media posting to be fair.

Reference list:
1. Maharaj A R ‘The justification of dismissals emanating from social media misconduct in the workplace.’
(2021) pg. 78 LLM Thesis.
2. https://www.bankmycell.com/blog/number-of-whatsapp-users/
3. (Pty) Ltd (2022) 31 CCMA 8.37.15.


WRITTEN BY BRIDGETON PETOORS
Bridgeton Petoors is a Candidate Attorney at Miller Bosman Le Roux Attorneys

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

Related Expertise: Labour and Employment
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