With the passage of time it

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1 THE ROLE OF COLLECTIVE AGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA -INCOMPATIBILITY AS GROUNDS FOR DISMISSAL - ALCOHOL RELATED OFFENCES IN THE WORKPLACE - HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND DISMISSAL - WHAT IS AN EMPLOYMENT BENEFIT? - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLE OF CONSISTENCY IN DISCIPLINE Contemporary - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF UNLAWFUL DEMANDS -PICKETING RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - TRANSFERRING CONTRACTS OF EMPLOYMENT - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTION CRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - THE PROTECTION OF WHISTLEBLOWERS - DEFINING REMUNERATION - VICARIOUS LIABILITY AND THE WRONGFUL ACTS OF EMPLOYEES - DOES NEW EVIDENCE JUSTIFY A NEW DISCIPLINARY INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS - DISMISSALS AND HEARSAY EVIDENCE - THE EMPLOYMENT OF FOREIGN WORKERS - THE DISMISSAL OF SEX OFFENDERS - DOUBLE PAY ON PUBLIC HOLIDAYS - PROTECTED DISCLOSURE AND COMPENSATION FOR DISMISSAL - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUNDS FOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - DISMISSAL FOR ABUSE OF - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - PICKETING RULES -REFERENCES IN RECRUITMENT - CONSTRUCTIVE DISMISSAL - FIXED TERM EMPLOYMENT CONTRACTS - DEDUCTIONS FROM PAY - THE TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT - DISMISSAL FOR ABUSE OF - SICK LEAVE - WHO IS AN EMPLOYEE? - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR Labour RIGHTS AND OBLIGATIONS - CHANGING TERMS AND CONDITIONS OF Law EMPLOYMENT - PICKETING RULES -WORKPLACE PRIVACY AND INTERCEPTION - DISCIPLINING SHOP STEWARDS - THE ROLE OF COLLECTIVE AGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA - LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS - INCOMPATIBILITY AS GROUNDS FOR DISMISSAL - ALCOHOL RELATED OFFENCES IN THE WORKPLACE - HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND DISMISSAL - WHAT IS AN EMPLOYMENT BENEFIT? - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLE OF CONSISTENCY IN DISCIPLINE - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF UNLAWFUL DEMANDS -PICKETING RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - DISMISSAL FOR ABUSE OF - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS -REFERENCES IN RECRUITMENT - CONSTRUCTIVE DISMISSAL - FIXED TERM EMPLOYMENT CONTRACTS - DEDUCTIONS FROM PAY - THE TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT RESTRAINTS ABUSE OF - SICK LEAVE - WHO IS AN EMPLOYEE? - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS Vol. - RULES 21 No. DURING 2 STRIKES September - DISMISSAL AND 2011 ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - TRANSFERRING CONTRACTS OF EMPLOYMENT - POLYGRAPHS AND DISMISSAL - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTION CRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - DEFINING REMUNERATION - VICARIOUS LIABILITY AND THE WRONGFUL ACTS OF EMPLOYEES - DOES NEW EVIDENCE JUSTIFY A NEW DISCIPLINARY INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS - DISMISSALS AND HEARSAY EVIDENCE - THE THE SUSPENSION OF EMPLOYEES - THE ROLE OF REFERENCES IN RECRUITMENT - CONSTRUCTIVE DISMISSAL - FIXED TERM EMPLOYMENT CONTRACTS - THE TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT RESTRAINTS OF TRADE - DISMISSAL FOR ABUSE OF - SICK LEAVE - WHO IS AN EMPLOYEE? - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - THEIR RIGHTS AND OBLIGATIONS - CHANGING TERMS AND CONDITIONS OF EMPLOYMENT - PICKETING RULES -WORKPLACE PRIVACY AND INTERCEPTION - DISCIPLINING SHOP STEWARDS - THE ROLE OF COLLECTIVE AGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA - LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS - ALCOHOL RELATED OFFENCES IN THE WORKPLACE - HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND DISMISSAL - WHAT IS AN EMPLOYMENT BENEFIT? - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLE OF CONSISTENCY IN DISCIPLINE - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF L - PICKETING RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - - TRANSFERRING CONTRACTS OF EMPLOYMENT - POLYGRAPHS AND DISMISSAL - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTION CRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - DEFINING REMUNERATION - VICARIOUS LIABILITY AND THE WRONGFUL ACTS OF EMPLOYEES - DOES NEW EVIDENCE JUSTIFY A NEW DISCIPLINARY INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS - DISMISSALS AND HEARSAY EVIDENCE - THE EMPLOYMENT OF FOREIGN WORKERS - THE DISMISSAL OF SEX OFFENDERS - DOUBLE PAY ON PUBLIC HOLIDAYS - PROTECTED DISCLOSURE AND COMPENSATION FOR DISMISSAL - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL -RETIREMENT AGE AND UNFAIR DISMISSAL - GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - DISMISSAL FOR ABUSE OF - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - PICKETING RULES - CHANGING TERMS AND CONDITIONS OF EMPLOYMENT - WORKPLACE PRIVACY AND INTERCEPTION - DISCIPLINING SHOP STEWARDS - THE SUSPENSION OF EMPLOYEES - TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT - DISMISSAL FOR ABUSE OF - SICK LEAVE - WHO IS AN EMPLOYEE? - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - CHANGING TERMS AND CONDITIONS - THE ROLE OF COLLECTIVE AGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA -INCOMPATIBILITY AS GROUNDS FOR DISMISSAL - ALCOHOL RELATED OFFENCES IN THE WORKPLACE - HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND DISMISSAL - WHAT IS AN EMPLOYMENT BENEFIT? - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLE OF CONSISTENCY IN DISCIPLINE - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF UNLAWFUL DEMANDS -PICKETING RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - TRANSFERRING CONTRACTS OF EMPLOYMENT - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTION CRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - THE PROTECTION OF WHISTLEBLOWERS - DEFINING REMUNERATION - VICARIOUS LIABILITY AND THE WRONGFUL ACTS OF EMPLOYEES - DOES NEW EVIDENCE JUSTIFY A NEW DISCIPLINARY INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS - DISMISSALS AND HEARSAY EVIDENCE - Managing Editor: P.A.K. Le Roux Contributing Editor: Carl Mischke Consulting Editor: A.A.Landman Published by Gavin Brown & Associates Box Tokai 7966 Tel: Social networks, privacy and dismissal Facebook, Twitter et al : the employer s reputational risk by Carl Mischke With the passage of time it seemed that the Internet, specifically the World Wide Web, would never entirely live up to the hype. Apart from a number of outrageously successful online shopping sites, the odd reference and information-retrieval site and websites catering to other needs entirely, the World Wide Web largely stagnated. Information flowed in one direction: from those who created the websites and made the information available to the largely passive recipients (users) of that information. In some senses the World Wide Web, by the middle of the first decade of the 21 st century, had become a library without a librarian in sight. It was also a library containing information that ranged from the verifiable, factually correct and even reviewed information disseminated from sites run by universities or governments, to sites that represented maverick thinking, prejudice and bigotry, wild supposition and outright lunacy. There was no editor to assist users in distinguishing between the good, the bad, and the lunatic fringe. At this point the main concern for employers was ensuring that employees devoted their working hours to their work and not idly trawling the Internet. In drafting appropriate policies, the biggest challenge was providing for some margin of personal use of the employer s internet resources. Another challenge was ensuring that employees did not access websites of ill repute during their working hours or download offensive materials. That disciplinary action could be taken as a result of offensive material distributed via or as a result of the unauthorised downloading of material (including but not limited to pornography, of course) was soon settled and by now most employees are aware of the fact that they run a considerable risk if they engage in internet activities not related to their jobs. Websites with offensive content could be blocked by system administrators, ensuring that Inside... The strike and the employer's mistake p18 Dismissal following a lifestyle audit p20 Page 11

2 employees had no access in the workplace to the darker sides of the Internet. But as the decade drew to a close, a new development would completely change the face of the internet and specifically the World Wide Web social networking. Social networks such as Facebook and Twitter are now ubiquitous: companies, institutions, and individuals utilise these networks for a variety of purposes. The core of these social networks is that they allow a user to establish links or connections with organisations or individuals or other social or special interest groups voluntarily (and they can terminate these connections at will). It is therefore possible for a user of Facebook to determine who will be a friend a user will either receive a friend request from another Facebook user or may send such friend requests himself or herself. In this way an individual can create a mirror image of his or her social relationships and interests online making the web a much more personal experience that the user can customise, change and delete at will. No longer are users of the World Wide Web passive consumers of information placed by others: they are now the creators of their own content. Social networking sites such as Facebook and Twitter offer not only convenience and the ability to establish and maintain social links, but also the possibility of almost instantaneous communication with large groups of people. They are also portable: invariably these networks can be accessed not only by personal computers, but also by smart cell phones and tablet computers. Social upheavals in 2011, ranging from the uprisings in Arabian countries to the August riots in London, have all seen significant reliance on these social networks. News of protest action can spread like the proverbial wildfire, riots can be instigated or the flames of unrest fanned by posts on social networking sites or even proprietary messaging networks (such as the networking product available to users of Blackberry cell phones, called Blackberry Messenger). Into disrepute The most significant challenge facing employers in respect of the social networking sites is not so much ensuring that employees refrain from spending their working hours keeping an anxious eye on their social connections in the background. Most employers opt to simply prevent access to these sites by technical means. Far greater, however, is the possibility that the employer s name will be dragged through the digital mud that employees will make derogatory comments about the employer, managers and co-workers on their social networking pages. This is illustrated by the recently reported CCMA award in Sedick & another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA). Two employees were charged with, and dismissed for, bringing the company name, the director, management and staff of the employer into disrepute in the public domain. The one was the operations manager, a well-paid senior employee; the other was a bookkeeper. A third employee was also charged, but the chairperson of the disciplinary enquiry recommended that the third employee only receive a final written warning. The dismissal was a direct result of postings the employees had made on Facebook. The CCMA commissioner provides a useful overview of how the social networking site Facebook works, emphasising the fact that access to the site is open and free, that users create their own profiles, and that they establish connections with friends. Another important aspect is the fact that a number of privacy settings are at the disposal of Facebook users. While these are largely tucked away in somewhat obscure menu s, the privacy settings make it possible for users to limit the information seen by a casual visitor to the user s profile and to limit full engagement (and visibility of posts and the ability to respond to posts) to the users friends. One of the key concepts, at least as regards Facebook, is that of the wall this is a section on the user s personal profile where the user can post his or her own status messages and where their friends can either respond to their posts or compose their own messages. If no access restrictions have been set by the users, anyone who accesses the user s profile will be able to see all wall posts and responses. The business concerned was a family-owned and managed business. The employer s marketing manager, a position senior to that of the employees charged with misconduct, had been a Facebook user, Page 12

3 and decided to again become active on the site. Having set up her own profile, she invited the operations manager to become a friend. When she accessed the operations manager s profile, however, she found that no privacy settings were in place, and that she could view all the information on the profile including the posts made by the operations manager. The marketing manager did the same with the bookkeeper s profile, again to find that all postings were freely accessible to anyone, regardless of whether they had been linked as friend or not. On the profile of both the operations manager and the bookkeeper the marketing manager found a considerable number of derogatory posts about the company and those working there, especially the family members who held senior positions, or those who had recently joined the business to learn the ropes. The posts did not use the name of the company or the names of any of the persons, but the aim of the posts was clear. For the most part, the posts the employees had made on their Facebook walls were complaints and gripes about being unhappy in a family business, frustrations about the kids who joined the company, office drama and fights that had occurred between employees. Naturally, some of these posts were considerably nastier than others; in most of the posts the employees used derogatory nicknames for those they were complaining about. From the employer s perspective, these comments were of a serious nature because of the operations manager s position in the company, her position as a representative of the company (the public face of the company in dealing with both customers and suppliers) and the fact that the comments were made in a forum that was in fact fully accessible to everyone. The seriousness of the remarks were compounded by the fact that present and former employees of the company also responded to these postings and these postings were again visible to even a casual visitor to the employee s profile pages. The employees argued that no disrepute had been caused: no direct references to either the company or the individuals concerned had been made in the postings. The bookkeeper claimed that her postings did not refer to the senior managers, disingenuously saying that she could not remember to whom some of her postings referred or that they referred to other employees altogether. She also claimed that she was merely venting her emotions and that many of her postings constituted nothing more than jokes. It was the operations manager who raised the more serious point, namely that her privacy had been invaded and she questioned the right of the marketing manager to excavate her old posts. But she did concede that she had not restricted access to her profile using the privacy settings. Privacy abandoned In her defence, the operations manager argued that the privacy of her communications had been violated and the CCMA commissioner was required to determine whether the employer s obtaining of the evidence amounted to a breach of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 70 of For the purposes of this award, the commissioner focused on s 4(1) of the Act which provides for the interception of communications by a party to the communications. But the entire issue of privacy would only arise if the postings made by the two employees were not in the public domain. For the most part, the commissioner found, the internet constitutes public domain and access to the social networking sites themselves is unrestricted. This unrestricted access, however, is at a general level only, given the fact that users may exercise options to restrict access to their personal profiles and pages and the contents of those pages. In the absence of such privacy-control measures, the information remained in the public domain: [52] In the absence of access to the pages being restricted, De Reuck and Sedick s pages remained wholly in the public domain. By extension, any person using the internet qualified as a party to the communications, including Ms Coetzee, and as a consequence, she was entitled to intercept, that is, to read, download and print, these communications in whole or in part. De Reuck and Sedick s postings were, to all intents and purposes, available to the public in the same way that blogs and public comments on news media Page 13

4 sites, or letters published in newspapers are available. I find that as a consequence of their failure to make use of the privacy options, De Reuck and Sedick abandoned their right to privacy and the protections of Act 70 of The admissibility of the evidence is, therefore, not at issue. Protecting the privacy of communications therefore depends on the user taking some concrete steps to restrict access to those communications. Things may well have been completely different for the two employees in this case if they had indeed utilised the Facebook privacy settings to limit access to their profiles to their selected friends. Then the question would have arisen, however, whether the interception of a post by a friend (who would then clearly be party to the communication) would change the situation and to what extent. The issue of privacy of communications also arose in Smith v Partners in Sexual Health (non-profit) (2011) 32 ILJ 1470 (CCMA), an award issued by the same commissioner. This decision did not relate to Facebook or Twitter postings, but the employer s obtaining access to an employee s private web-based account. When the employer commenced its operations, it did not have its own Internet domain and it opened a Google mail (Gmail) account for the time being. This online, web-based system is nothing like Facebook: it is an system in a true sense, characterised by the fact that the messages are accessed, sent and received using a web browser such as Internet Explorer or Firefox. At no time are these messages accessible to anyone else; by no stretch of the imagination can it be said that the contents of a Gmail account are in the public domain. In order to gain access to their Gmail accounts, users have to log on using a username and password. But the Gmail system shares an auto-login feature with sites like Facebook and Twitter. At the end of each session on the Gmail system, a user should, in principle, log out, but there is an option to stay logged in. When the user then terminates the session (by closing the web browser, for instance) the user is not in fact logged out at all. If the user later returns to the Gmail system, there is no need for him or her to log in again the user will conveniently return directly to the Gmail pages he or she last used. Eventually, the employer obtained its own domain name but still retained its old Gmail account because a number of clients and contacts continued to use it. One of the employee s duties was to check this old Gmail account on a regular basis and to forward the s received there to the employer s new system. But the employee also had her own, personal Gmail account. She went on leave and while on leave the employer s CEO looked for a document on the employee s work computer and decided to herself check the old Gmail account to forward any s to the new system. When she pointed her web browser to the Gmail system, she was automatically logged on to the employee s private Gmail account the employee had not logged off and had activated the auto-login feature. The CEO accessed the employee s Gmail account not once, but twice. The CEO found exchanges between the employee and former employees as well as persons outside the organisation, and these made some reference to internal matters. Again, the tenor of the s so intercepted was a litany of complaints about pay increases, working hours, favouritism shown by managers and perceived unfair treatment of other workers. The employee was charged with a number of offences, including bringing the employer s name into disrepute and breach of contract. In the disciplinary hearing the employee argued that these s had been obtained in violation of her fundamental right to privacy and in contravention of the Regulation of Interception of Communications Act. The chairperson came to the conclusion that the evidence was admissible and found that the s constituted a breach of confidentiality clauses contained in the employee s contract of employment, that the employee was guilty of insubordination or insolence when she referred to the CEO as a real cow and that she was indeed guilty of bringing the employer s name into disrepute. There could never be a trust relationship between the parties again after what the employee had said to others about the management and its management style. Page 14

5 Tainted and admissible? The CCMA commissioner focused on two initial questions, namely whether the evidence was obtained in an unlawful manner and if it was, whether the evidence could be utilised. The relevant provision of the Regulation of Interception of Communications Act was s 2, which provides that no person may intentionally intercept or attempt to intercept any communication. Reference was also again made to s 4 interception by a party to the communications and s 5, which provides that a party to a communication may give prior consent to interception of communications. The CEO had intentionally accessed the s even though she was not the sender, the recipient or even the intended recipient of the s; nor had any party to the communications given her consent to intercept the s. The information in this case was not stored on the employer s servers or computers (this may have been the case if the employee had downloaded and stored her s to a directory on the hard drive of her computer). To access the s the employer had left its own sphere of ownership to enter the Internet domain which was, technically, owned and operated by Google. The mails were stored on Gmail servers allocated to the employee for her personal and private use (users enter into a contract with Google if they sign up for a Gmail account). Did the employee s use of the auto-login feature imply that she had abandoned her right to privacy? The CCMA commissioner held that it did not: [51] The fact that Smith clearly exited her account in such a manner that it was left open to access by another person does not, by default, place the contents of the account in the public domain. The contents of an account cannot be compared to comments posted on an Internet blog to which access is not restricted in any way, or to comments posted on an Internet-based social networking site, such as Facebook, where privacy cannot be reasonably expected by any user as the site structure allows viewing (interception) of conversations by persons not party to those communications. Unlike such Internet postings as those now mentioned, s have, in the main, specified recipients and private s are, in particular, intended for those recipients eyes only. The commissioner concluded that the CEO s accessing of the employee s private account on the second occasion amounted to an improper interception of the employee s private communications the employer was not party to the communications and it did not have the employee s consent to intercept the s. The evidence was unlawfully obtained. Given the fact that the evidence was tainted with illegality, the question remained whether the CCMA commissioner should nevertheless admit the evidence for the purpose of the arbitration. In this context the commissioner relied on the High Court s decision in Protea Technology & another v Wainer & others 1997 (9) BCLR 1225 (W) which deals with this issue at length. The High Court examined the constitutional right to privacy enshrined in s 14 of the Constitution of 1996, and emphasised the fact that privacy is not an absolute right: I have already referred to the fundamental importance of the right of privacy in an open and democratic society. While incursions by the State possess greater potential for harm (since the State has the capacity to remove or threaten the rights of all its subjects, whereas private invasions are likely to be more restricted), I do not think that that is more than a peripheral reason for not according equal recognition to privacy from intrusion by other societal forces, although the intensity of such forces may vary. How important is it that the court should retain such discretion? Privacy is not an absolute right under the Constitution. Nor can it be in practice. That the court should retain the discretion to admit evidence which is relevant is highly desirable provided any fundamental right involved is given its proper weight in a judicial manner. (at 1242) The commissioner asked whether the suspicion raised when the CEO discovered the s itself justified infringing the employee s right to privacy and, if so, whether there were other means of confirming or denying that suspicion. Page 15

6 "Whilst this ruling may appear to allow employees to say what they wish to whomsoever they wish whilst hiding their communications on the Internet, it should be borne in mind that employees have always had, and still have, the avenue of the postal system to distribute such destructive communications, to which the employer equally has no lawful access. is merely quicker. Smith v Partners in Sexual Health The commissioner concluded that the employer was indeed justified in continuing its investigations, and focused on the contents of one on which the employer placed considerable emphasis in the arbitration proceedings. The was gossipy and referred to a co-worker s arrest and alleged drunkenness, but the commissioner found that the employee had been discussing potentially damaging matters with a person who was a former employee. The employer was justified in extending its investigations. Nor did the employer have any other practical means of obtaining the evidence it sought to rely on in this case. Even so, the fact that the intercepted s were stored in a private mailbox situated on the Internet was significant the evidence was not physically stored on equipment owned by the employer. The commissioner concluded that a limitation of the employee s right to privacy could not be justified and ruled that, with the exception of one accidentally discovered , the rest of the evidence was inadmissible: [60] To find otherwise would be effectively to give employers carte blanche to hack into Contemporary Labour Law is published monthly from August to July of each year. Visit our website at www. workplace.co.za for information and subscription details. Subscription Enquiries : Tel : (021) Fax : (021) workplace.co.za ISSN X Copyright held by the authors. No part of this publication may be reproduced in any form without the prior written consent of the publishers. the private box of any employee on any occasion that they suspect the employee of having made remarks deemed inappropriate. This cannot be condoned. [61] Whilst this ruling may appear to allow employees to say what they wish to whomsoever they wish whilst hiding their communications on the Internet, it should be borne in mind that employees have always had, and still have, the avenue of the postal system to distribute such destructive communications, to which the employer equally has no lawful access. is merely quicker. Charges and sanctions The CCMA commissioner concluded that the employee s dismissal in the Smith case was both procedurally and substantively unfair. In the Sedick case, however, the employees dismissals were found to be fair. The Facebook posts did indeed serve to bring the company, its managers and other employees into disrepute in the public domain. Sedick and De Reuck were intentionally communicating with subordinates and former employees and even other persons. It was highly likely that other persons who came across their Facebook profiles would be aware of the identity of the employer and this meant that two of the senior employees in the organisation were making derogatory and demeaning remarks about the director and manager in public. There was a potential for damage to the company s reputation (and the reputation of the managers) and the Facebook postings were inappropriate as they crossed hierarchical bounds and encouraged and condoned the lack of respect for management. Not all the postings were equally serious, but some amounted to gross insolence, if not insubordination. One of the issues that arose in both cases, however, was the formulation of the charges and the employees Page 16

7 argument that they did not have sufficient information about the charges to prepare a defence. Both Sedick and the operations manager admitted they had computers at home, rendering meaningless their argument that they were deprived of access to the employer s computers. Both the employees eventually conceded that they knew that their postings on Facebook were the problem; they had been informed of this fact. They had ample time to go through their Facebook profiles to see what postings could have given rise to the disciplinary charges. In the Smith case, the commissioner found that the employee was aware of the basis of the charges laid against her. In both cases, one of the main charges brought by the employer was bringing the name of the employer or managers into disrepute. And it is likely that this will, in cases such as these, remain the charge most often used by employers. Relevant considerations in respect of this charge will be the nature of the remarks and where the remarks are made and to whom. It would be necessary to consider who could have access to the remarks, whether the remarks were in the public domain or whether they were protected by security or privacy measures taken by the employee. Another important consideration would be the extent to which the postings or s clearly relate to workplace events and other persons in the workplace, especially managers and superiors. The impact of the postings on the relationship between the employee making the postings and his or her superiors will also be relevant. Employees may seek to argue that the postings were made using their own equipment (their own computers or smart phones), but this argument will clearly not save the employee. The insolence shown by the employee is clearly of considerable relevance to the The strike and the employer's mistake by Carl Mischke The decision of the Labour Appeal Court in NUM obo Employees v CCMA & others [2011] JOL (LAC) is of interest for two reasons. It provides a correction for a view expressed by the Labour Court as to the nature of a strike and it focuses on the employer s actions in determining workplace. A decisive issue is whether dismissal is the appropriate sanction under the circumstances. In the Sedick case the commissioner had no doubt that dismissal was indeed appropriate. But the question remains whether other corrective measures could be used by the employer. Would a final written warning, coupled with an instruction to remove the posts from Facebook and to post an apology have served as an alternative sanction? In Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA) (discussed in CLL Vol 20(4) November 2010) the employer fashioned an alternative to dismissal even though the chairperson of the disciplinary enquiry had recommended dismissal. Here the employee was given the option of apologising to the Board within 24 hours, apologising to staff and posting a retraction of the allegations he had made on his Facebook page. The employee was also required to shut down his Facebook page once he had done so. The employee was dismissed after he failed to comply with these conditions. It should be clear to both employers and employees that the reach of the employer s power to discipline extends to what an employee says about events and persons in the workplace on social network sites. The employer has an interest in protecting its own name and reputation, and to respond with disciplinary action if employees postings on social networking sites go beyond personal expressions of frustration and anger. As soon as an employee makes derogatory and demeaning remarks about the employer and workplace events and these remarks turn out to be in the public domain, disciplinary action would be appropriate, even though dismissal for a first offence may not be. whether the dismissal of the strikers was fair. The matter arose in the context of the employer s continuous operation. In 2004, the employer issued a notice to the employees in respect of the Easter public holidays: the employees Page 17

8 were advised that the plant would be closed on Good Friday 9 April 2004 and that work would only commence again on the evening of Wednesday 14 April But the notice did not end there. The employees were also told that if they did not work the night shift immediately before the shut down (on 8 April) or the night shift on 14 April, they would not be paid for the entire Easter weekend. A number of employees failed to show up for these shifts and they were then either not paid at all for a number of days or had deductions made from their wages. As a direct result of the non-payment and deductions, a group of employees refused to return to their workstations until the money deducted had been paid. A manager asked the strikers to appoint four spokesmen to discuss the problem while the others returned to work. The employees refused to appoint spokesmen because all of them wanted to engage with the employer. They were given an ultimatum to return to work. Time passed and still the employees refused to work and they were then suspended and charged with participation in an illegal and unprotected strike. By this time the employer had undertaken to correct the necessary payments but only on the next payment date. Some employees thereupon returned to work, but the majority persisted with the work stoppage. These employees were dismissed. The CCMA commissioner concluded after the arbitration that the employees had indeed engaged in an unprotected strike and the only question remaining was the appropriate sanction. The commissioner found that the employees were correct in their view that the employer had unlawfully deducted pay due to them for the public holidays concerned. The employees had every reason to be upset about the deductions from their pay but this did not justify their going on a wildcat strike. They had acted in total disregard of the provisions of the LRA; they had not been willing to negotiate with the employer s representative when he asked them to appoint spokesmen. They had been given sufficient time to reflect on the ultimatum and to respond to the ultimatum. The commissioner concluded that their dismissals were both substantively and procedurally fair. But was it a strike? The first question the Labour Appeal Court had to answer was whether the employees conduct fell within the scope of the definition of a strike. The argument presented was that the employees had not ceased to work in order to address a general grievance (such as a dispute over wages) or any other matter of mutual interest all they had done was to make a lawful enquiry about the wages to which they were entitled. This in turn meant that their actions could not be taken as a strike, but as some other form of withholding work. The Labour Appeal Court (per Davis JA), pointed to the anomaly this would create: [14] In my view, this submission would lead to the rather anomalous conclusion that where workers who had refused to work in circumstances where the dispute was not a matter of mutual interest but of right, then the concerted refusal to work in such circumstances would not be classified as an unprotected strike but would not be a strike at all. Manifestly, this conclusion cannot be accepted. Referring to the definition of a strike in s 213 of the Labour Relations Act (LRA), the Court found that the employees had indeed refused to work, their actions were concerted actions and the purpose of their action was to obtain redress for the employer s decision to withhold payment. It was in respect of this last requirement, however, that the Labour Appeal Court had reference to a much earlier decision of the Labour Court: Nkutha & others v Fuel Gas Installations (Pty) Ltd [2000] 2 BLLR 178 (LC) in which the Labour Court had focused on the issue of breach of contract on the part of the employer. The Labour Court had said in this early decision that the employees refusal to work in response to the employer s failure to perform its obligation to pay was a lawful refusal it did not amount to a breach of contract under common law. Cases where the employees are lawfully entitled to refuse to work had to be distinguished from a strike where their concerted refusal to work amounted to an unlawful breach of contract. If the work stoppage is a response to the employer s failure to comply with its contractual obligations, it would not constitute a strike as defined Page 18

9 in s 213 of the LRA. The Labour Appeal Court showed no hesitation in putting this view to rest, saying that this distinction drawn by the Labour Court found no support in s 213 of the LRA. It does not matter whether the employees concerned can decide to cancel the contract as a result of the employer s breach of the contract or sue for damages. The key issue is one of classification: whether the refusal to work as a response to a breach of contract falls within the scope of the LRA s definition and regulation of a strike. The Labour Appeal Court held that it did and found that the Labour Court s analysis in the Nkutha decision did not reflect the true position under s 213 of the LRA. Anger and resentment The mere fact that the strike was unprotected did not provide the employer with a licence to dismiss the employees without a careful consideration of the circumstances. This is the second interesting aspect of this case: the factors the CCMA commissioner took into consideration in concluding that the dismissals were fair, contrasted to those factors emphasised by the Labour Appeal Court. The commissioner noted that there was no dispute that the employer had deducted the monies from the employees remuneration unlawfully and had breached their employment contracts. The employees had every reason to be distressed by the employer s action. The employees had not been heard in any way before the employer had taken its decision. The strike itself was peaceful and the purpose of the strike was to compel the employer to pay back the money that had been unilaterally deducted. Finally, the commissioner noted that the employees absence had not had a particularly significant impact on the employer s overall operation. Factors adding weight to the other side of the scale were that the employees had acted in clear breach of the LRA in going on strike and that they had alternative remedies: they could have used contractual remedies or could have engaged in dialogue with the employer. The commissioner placed special emphasis on the fact that the shop stewards did not make any attempt to contact union officials to enlist their assistance. The employer had acknowledged its mistake and had undertaken to remedy the problem on the next pay date. There was also the fact that the employer had issued clear and fair ultimatums to the employees. Before the Labour Appeal Court, the employer s representative argued that the commissioner had crafted a fair and careful award taking into account all of the considerations and coming to a reasoned conclusion that the dismissals were fair. The Labour Appeal Court disagreed: [26].... The applicable question, however, is whether second respondent reasonably weighed all of the factors in order to come to a reasoned decision. In my view, he failed to do so. The reaction of the affected employees was directly attributable to a unilateral action on the part of third respondent to withhold wages. The fact that third respondent might have offered to repay the amounts at some later date did not remove the legitimate anger and concern of employees who, given their circumstances, were hardly likely to have the necessary resources to sustain their basic standard of living when monies were unilaterally deducted in this fashion. The employees did not respond in a violent fashion. According to the findings of the second respondent, their action did not last for very long; did not cause huge losses to the operation of the third respondent; and, even second respondent was constrained to admit that they might have had a noble objective. Once it is accepted that participation in an unprotected strike is not inevitably to be visited with dismissal, second respondent was bound to consider all the factors that were listed in the award both those in favour of the employer s decision to dismiss and those in favour of the applicable employees. This passage leaves some room for debate, of course, as it seems that the CCMA commissioner had indeed done just what the Labour Appeal Court ordered: consider the factors for and against dismissing the employees. On the whole, it seems that the difference between the Labour Appeal Court and the commissioner in this case is more one of emphasis than one of fundamental approach. The Labour Appeal Court focused more, it seems, on the impact the employer s mistake would have on the employees Page 19

10 lives and the fact that the employer s conduct would lead to anger and resentment justifiably so under the circumstances. Wherever one places the emphasis, however, this decision of the Labour Appeal Court, and, for that matter, the award of the CCMA commissioner, goes to show that an employer may well be made to pay a heavy price if it makes mistakes such as these. The fact that the employees may have made some mistakes of their own (refusing to engage with the employer, for instance, by appointing spokesmen, for instance) will weigh less than what the employer did wrong. Dismissal following a lifestyle audit by Carl Mischke Some employees appear to lead a lifestyle more lavish than their earnings seem to support, and in CEPPWAWU obo Hlebela v Lonmin Precious Metals Refinery [2011] 8 BALR 814 (CCMA) the employee concerned was an operator in the employer s platinum processing business. He earned a decent salary of R a month at the time of his dismissal the reason for the dismissal being a loss of trust. The full formulation of the charge gives a better sense of what lay behind the disciplinary action: that the employee had knowledge of the enormous losses of platinum group metals at the refinery, but that the employee had made no full and frank disclosure to the employer that could assist it in its investigations of the losses. The employee was found guilty on this charge after a lifestyle audit showed that he enjoyed a standard of living considerably higher than anyone earning his salary could achieve. He was asked to make disclosures about his private life to his employer no doubt the employer wanted to know how the employee could afford numerous fixed properties, numerous motor vehicle transactions, and whether the employee was involved in private companies or close corporations. The employer also asked the employee to provide a list of valuable items purchased in the previous 24 months such as jewellery and designer clothing. On the advice of his trade union, the employee declined to provide the employer with this information and he was then dismissed on the basis of derivative misconduct meaning, in this case, that the employee must have known how the vast quantities of precious metals were being stolen from the employer and that, as part of the duty of good faith he owed his employer, he should have disclosed his assets to the employer. In failing to do so, the argument went, the employee destroyed the very heart and nucleus of the trust relationship between himself and the employer. There was no direct evidence that the employee was involved in dishonesty; all the employer and the CCMA commissioner had to work with was circumstantial evidence. The CCMA commissioner briefly discussed a number of earlier decisions relating to the use of circumstantial evidence. The commissioner noted that the employee s case consisted of a bare denial of all the charges, even though on one occasion he slipped up by bragging that he owned much more than the property listed by the employer (a mistake he quickly sought to correct by claiming that he did not understand the question). The CCMA commissioner came to the conclusion that the employee s dismissal based on derivative misconduct was fair. The employer was entitled to draw an extremely negative inference from the employee s refusal to provide a reasonable explanation for his wealth. Indeed, said the commissioner, what other reasonable inference could be drawn from the employee s refusal to explain his wealth after all, the employer suffered a 200kg a month loss of platinum, it was alerted by the SA Police Service that some of its employees were living the high life, and the employer then did a lifestyle audit. Certainly, said the commissioner, merely requesting an explanation from the employee was entirely reasonable. Page 20