Zimbabwe @35: An Introspection

  Social media visa vis employee misconduct.

(This article was also published in the Law Society of Zimbabwe Zim Juris, August 2015 Issue)

  

Section 61 of the Constitution of Zimbabwe guarantees freedom of expression and freedom of the media excluding, incitement to violence, advocacy of hatred or hate speech, malicious injury to a person’s reputation or dignity and  malicious or unwarranted breach of a person’s right to privacy. Facebook walls and whatsapp groups are examples of social media channels facilitating enjoyment of this constitutional right.

In light of the current technological changes, every organisation using social media or general electronic communication should have a social media policy or electronic communication policy (ECP) in place. While ECP in the workplace may have distinct advantages for an employer, the real or perceived rights of the employee may potentially conflict with those of the employer. In light of this, how our courts will deal with issues arising out of social media usage is still, to a large extent, uncertain.

In South Africa and other jurisdictions, posting of offensive comments on online social media sites by employees had been recognised as a fair reason for employee dismissal. In the case of Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 The Commission for Conciliation, Mediation and Arbitration (CCMA), two employees 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.

 

In terms of the South African Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002,(RICA) “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. 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.

 

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.

 

In Smith v Partners in Sexual Health (non-profit) (2011) 32 ILJ 1470 (CCMA), an organisation’s chief executive officer accessed an employee’s private Gmail e-mail account while she was on leave and found e-mails between her and former employees, as well as persons outside the organisation, which made reference to internal matters. The employee was charged with a number of offences, including bringing the employer’s name into disrepute.

 

In her defence, the employee contended that the e-mails were accessed in violation of her right to privacy and in contravention of RICA. The CCMA found that the intentional access contravened RICA and the evidence obtained through this access was inadmissible on the basis of an infringement of the constitutional right to privacy. The CCMA held the dismissal procedurally and substantively unfair.

 

CCMA has thus accepted that what an employee says on his Facebook profile may be fair reason for dismissal. In our Zimbabwean context, this approach may equally apply as long as it is brought within the context of our existing laws in general and labour laws in particular. Section 12B of the Labour Act (Chapter 28:01) provides that an employee can only be fairly dismissed if the dismissal is in terms of the employment code or in the absence of an employment code, in terms of the national code.

 

It is thus crucial to ensure that our employment codes contain the offences relating to use of electronic communications. The current Communications and Allied Services Sector National Employment Council Code of Conduct is commendable as it creates and defines an offence described as ‘unbecoming or objectionable behaviour’.Thus with employment codes properly drafted to capture misconduct of this nature, it will be easy for the employer and employee to resolve any dispute as to whether or not a particular conduct related to use of social media is a misconduct.

 

SI15 /2006, which is the model code of conduct in Zimbabwe, does not expressly provide for any misconduct that deals with the use of electronic communications. It is only the misconduct stated in section 4(a) (Any act of misconduct or omission inconsistent with employment contract) of that code that may be relied on to found a charge dealing with a misconduct arising from use of electronic communication.

 

Thus an employee, who publishes disparaging comments against his employer on his Facebook wall, can be charged with this misconduct if such publication is viewed as inconsistent with his conditions of contract. Such a charge may not be as clear as one would want as it appears the employer will be overstretching section 4(a).It is therefore crucial to have ECP in place to avoid an impasse in the disciplinary process due to lack of clarity on what conduct constitutes a misconduct.

 

With regards the interception of communication, the employer may rely on section 3 of Interception of Communication Act (Chapter 11:20). In terms of this law, the employer is allowed to intercept the employee’s communication if the employer is a party to the communication or the employee consents to the interception. 

 

In conclusion, our law should not remain behind and has to be aligned with the current developments in electronic communications, though the legal issue(s) that I have raised herein may be dealt with in terms of the normal rules of fairness and equity.