EMPLOYEES BEWARE MAKING ONLINE REMARKS

Social media network sites are generally just that, discussing the simple stuff of life and generally keeping in touch.

However, there is an increasing trend for people not to simply chat about their lives but also, to post their views about others as well as on a far ranging array of topics including, their work.

It is here that an employee who posts insulting or defamatory statements about the boss or colleagues may be subject to disciplinary action.

In the case Media Workers Association of SA obo Nvenve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA), the employee posted a statement on his face book alleging that the board of his employer was protecting the station manager and that the station manager was a criminal who should never have been employed in the first place.

At the disciplinary enquiry the employee was ordered to apologise to the employer, to staff and to post a retraction of his statement on his face book page.  He was also given a final written warning and required to shut down his face book page after he had made the necessary apologies and retractions.   When he failed to do this he was then dismissed.  At the CCMA there was a factual dispute as to whether he had or had not complied with the directions of the disciplinary enquiry.  The CCMA found as a matter of fact that he had not done so and his dismissal was confirmed.

However, this case highlights a new area of challenge for employers.  In the past employers IT policies dealt with e-mails, unauthorized use of and company’s information systems and internet abuse.

As employees regard themselves as free to say what they like and to whom they like on social media sites, believing that this is done in free time and not in the course and scope of their employment, employers will need to include provisions in their contracts of employment or policies to prohibit this kind of comment or conduct regarding the work place and fellow employees.

HIGHLIGHTS OF KEY PROVISIONS OF THE BASIC CONDITIONS OF EMPLOYMENT ACT

1. Enforcement mechanisms
    1.1 Section 70(b) provides that compliance court orders cannot be issued in respect of any money payable to a senior managerial employee as defined in Section 1 of the BCEA, nor can such orders be issued in respect of employees who earn in excess of an amount set out in Section 6(3) determination. 

    1.2 These employees have only a contractual remedy and would have to institute a claim for breach of contract if the employer fails to comply with the provisions of the BCEA.  In the case of Ephraim vs Bull Brand Foods (Pty) Limited (2010) 31 ILJ 951 (LC) the Labour Court held that it did not have the jurisdiction to enforce a claim based directly on the BCEA.  While the court held it has a general supervisory function in the statutory scheme of enforcement the Act does not extend to the court those functions that are reserved for the Labour Inspectorate.

2. Appeals

    2.1 If an employee wishes to object to a compliance order which has been issued against it, it can appeal to the Director General of Labour and if the Director General does not reverse the compliance order the employee then has the right of appeal to the Labour Court.  In the case Comtech Networking Solutions CC the Director General of the Department of Labour & Another (2010) 31 ILJ 600 (LC) the court held that Labour Inspectors perform administrative functions and must therefore meet the standards of fairness; and the Inspectors should be unbiased and impartial in the exercising of their functions.  This means that the Inspectors must give the employer an opportunity to respond to allegations before issuing a compliance order.

3. Deductions from employees salaries

 Section 34 of the BCEA provides that:

    3.1 An employer may not make any deduction from an employees remuneration unless:

(a) subject to sub section (2), the employee in writing agrees to the deduction in respect of a debt specified in an agreement; … this is the generally accepted position in our law; however in the case of Jonker vs Wireless Payment Systems CC (2010) 31 ILJ 381 (LC) the employer had incorrectly paid the employee a car allowance for a number of months.  The employer then deducted the over payment from the last two salary payments immediately prior to the employees retrenchment.

    3.2 Basing her claim on the provisions of Section 34 she applied in the Labour Court for an order compelling the employer to repay the monies deducted.

    3.3 The court refused to come to her assistance and held that in terms of Section 34(1)(b) which provides that “a deduction that is required or permitted in terms of a law, collective agreement, court order or arbitration award” may be deducted.  It is questionable however whether this judgment is correct.  The section allows the monies to be repaid; but it does not authorize a deduction.

4. Leave Pay

    4.1 The court considered in the case of Minny vs Smartplan CC (2010) 4B LLR 439(LC) the practice of the employer to include in the gross remuneration of the employee, a payment in lieu of leave.

    4.2 The court stated that “in my view, there is nothing in principle in this formulation that precludes an employer from paying an employee an all inclusive rate i.e. a rate of remuneration that includes the value of leave as accrued from week to week, or month to month, as the case may be”.  In effect by doing so, the employer discharges its obligation to pay leave pay at an earlier date than that required by the BCEA.

5. Earnings

    5.1 Section 6(3) of the BCEA provides the threshold of earnings where employees who earn in excess of the threshold are exempted from the provision of the BCEA.

    5.2 In the case of Mondi Packaging (Pty) Limited vs Director General : Labour & Others (2010) JOL 26029 (LAC) the Labour Appeal Court considered whether payment for overtime worked fell within the scope of the Act.  In this case Mondi included the pay that the employees receive for working overtime.  The Department of Labour disagreed with this approach. 

    5.3 The Labour Appeal Court decided that overtime pay should not be included in the concept of gross pay and therefore does not constitute earnings.