In today’s digital age, WhatsApp and social media has become an integral part of our professional and social life however these platform’s ease of use and casual nature come with significant responsibilities.
WhatsApp messages and social media posts, whether professional or personal, are not immune from scrutiny and can lead to significant legal and professional risks.
Messages or posts that mock colleagues, reveal sensitive company information, or convey personal grievances can result in dismissal or even criminal charges if they violate workplace standards or national laws
A wide range of legislation is applicable to social media misconduct and online behaviour including:
Regulation of Interception of Communications and Provision of Communication-related Information Act
No.70 of 2002 (RICA).
Protection of the Personal Information of Protection Act No. 4 of 2013 (POPIA).
Labour Relations Act No. 75 of 1997 (LRA).
LRA Code of Good Practice: Dismissal
LRA Code of Good Practice: Prevention and Elimination of Harassment in the workplace
Cybercrimes Act of 2021
Preventing and Combating of Hate Crimes and Hate Speech Bill
The balance between freedom of expression and an employer’s reputation
While employees might argue that they have the right to privacy and the right to freedom of expression people inevitably have competing and conflicting rights. One person's right to dignity, for example, may clash with another's right to freedom of expression.
In an open and democratic society based on dignity, freedom, and equality it is an established principal that rights can be limited in terms of Section 36 of the Constitution.
Employers therefore have the right to take disciplinary action if content disrupts workplace harmony, causes reputational damages or violates existing legislation.
Actions constituting misconduct may include:
Posting derogatory, offensive, or defamatory comments.
Cyberbullying and harassment.
Posting during working hours.
Sharing personal or sensitive information without consent.
Posting a photo of a client without their consent.
Employee’s failure to cease actions or communications.
Case Law
Several cases have illustrated the dangers of WhatsApp misuse.
An employee of a Johannesburg-based logistics firm was dismissed after sharing disparaging comments about their manager in a work-related WhatsApp group. The messages, meant as jokes, were interpreted as undermining authority and damaging workplace morale and the employer argued that the conduct violated company policies on professionalism and respect. The CCMA upheld the dismissal emphasising that employees are accountable for their conduct on digital platforms.
In another case, an educator at a Gauteng school shared explicit content in a private WhatsApp group meant for teachers. The material was forwarded to a parent, sparking outrage among the school community. The teacher was dismissed for gross misconduct, with the school arguing that the content breached its code of ethics and harmed its reputation. The CCMA supported the dismissal, stating that educators are held to high standards of conduct, even in private communication.
Additionally, an employee at a Cape Town advertising agency shared confidential client information in a WhatsApp group, believing it would remain private. The message was leaked, jeopardising the agency’s relationship with the client. The employee was dismissed, with the CCMA affirming the decision as a breach of trust and confidentiality.
Beyond the Workplace
Not only can Whatsapp messages lead to dismissals but also to criminal charges, fines and imprisonment where users distribute content that incites hatred based on attributes like race, religion, or gender.
For example, under the Cybercrimes Act of 2021, a member of Operation Dudula, a xenophobic vigilante group, was arrested in Durban for circulating voice notes inciting violence against foreign nationals.
Additionally, under the Preventing and Combating of Hate Crimes and Hate Speech Bill a business executive was prosecuted for sharing a racist meme in a private WhatsApp group. Though the executive claimed it was a joke, the court ruled it violated hate speech laws, leading to a hefty fine and reputational damage.
These cases demonstrate how WhatsApp can be a tool for hate speech and criminal incitement, holding users legally accountable for harmful content.
Employer and employee obligations
While South African labour law ensures fairness in dismissal processes, employees remain bound by their duty of good faith toward their employers.
Employees must recognise that digital communication is subject to workplace codes of conduct and national laws and must exercise caution, particularly when expressing opinions, sharing sensitive material, or posting content that could be construed as harmful.
To mitigate risks, employers should implement clear policies regarding WhatsApp and social media usage, ensuring employees understand boundaries and consequences.
Feel free to reach out to your EOHCB representative to provide you with an overview of acceptable and unacceptable social media use in the workplace and to navigate this topic with care and accountability.
