CHAPTER 2. LABOUR RELATIONS AND SOCIAL
2.3 THE LABOUR RELATIONS ACT 66 OF 1995
2.3.2 The employee
Employees have the duty to make services available to the employer and remain in employment until such time as the employment contract has been terminated.203 Employees must perform their duties efficiently and according to an employer’s expectation of work performance. In this regard employees must adhere to the reasonable instructions given by an employer.204 A duty of good faith is owed by employees to employers and this duty extends to employees furthering the employers work interests and to avoid misconduct. In this context good faith means that the employment relationship is based on the moral character of the employee. This duty of good faith owed by employees to employers includes employees from preferring defamatory, maligning, or harmful comments about the employer or co-employees on social media platforms.205 It is imperative for employees to avoid harassment or cyberbullying of fellow employees online which may potentially bring the good name and reputation of the
203 R Davey & L Dahms-Jansen Social Media in the Workplace 1st ed (2017) 227.
204 Ibid.
205 Chauke and Others v Lee Service Centre t/a Leeson Motors 1998 (19) ILJ 1441 (LAC).
54 | P a g e employer into disrepute. Employees must adhere to employer policies regarding the disclosure of privileged and confidential information on social media.206
An employment contract is a contract none-the-less and the common law principles applicable to the law of contract also finds application to employment contracts which could have significant impact on the duty of good faith owed by an employee and substantive fairness.
Whilst fairness in employment contracts is predominantly regulated in terms of the LRA, it may conflict with the common law principles of contract which are separate of each other. Be that as it may, fairness finds a place in employment contract law not only because it is regulated by the LRA but also because it is expected in the Constitutional provisions of fair labour practices on both employers and employees.207 In the Everfresh Market Virginia case, the Constitutional Court in its minority judgement described the role of good faith in the law of contract and stated
‘Good faith is a matter of considerable importance in our contract law and the extent to which our courts enforce the good faith requirement in contract law is a matter of considerable public and constitutional importance. The question whether the spirit, purport and objects of the Constitution require courts to encourage good faith in contractual dealings and whether our Constitution insists that good faith requirements are enforceable should be determined sooner rather than later. Many people enter into contracts daily and every contract has the potential not to be performed in good faith.
The issue of good faith in contract touches the lives of many ordinary people in our country’.208
The employee’s duty of good faith extends to not committing social media misconduct. If an employee’s social media communication causes reputational harm to the employer and clearly infringes on the employer's social media policies, potentially disclosing an employer’s confidential information, then such conduct breaches the employee’s duty of good faith.
Pursuant to an employment contract, an employee owes many duties to an employer which must be performed in good faith. These duties often include conduct which may impact other
206 R Davey & L Dahms-Jansen op cit note 203 at 227.
207 A Louw ‘The Common Law is …not what it used to be: Revisiting Recognition of a Constitutionally Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment [Part 3]’ (2018) 21 PER/ PELJ at 35- 41.
208 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC).
55 | P a g e staff and members of the public. An employee social media and communication that negatively impact members of staff or the public is not only construed as social media misconduct but also undermines the duty of good faith.
South Africa subscribes to rigid labour laws in regulating dismissals and misconduct.209 However, since 1995 (promulgation of the LRA), the advancements in technology and increased social media usage has strained labour relations. Dismissals will only be enforceable if they are substantively and procedurally fair.210 Substantive fairness emerges when the reason for the dismissal relates to employee incapacity, poor work performance, and the operational requirements of employer or employee misconduct.211 Improper use of social media in the workplace can be seen as insubordination. The misuse of social media can have cost implications for employer and damage workplace electronic systems which fall under ambit of misconduct.
Schedule 8 of the LRA contains a Code of Good Practice on dismissal. This Code contains factors to be considered in determining an employee’s guilt for misconduct. They include the employee’s awareness that a rule was contravened, the reasonableness of the rule and whether the rule was consistently applied.
In the Cronje v Toyota case, the court found that if an employer instituted an electronic communications policy (ECP) and enforced it consistently, any contravention would constitute misconduct on the part of the employee warranting substantive dismissal.212 The dismissal will only be completely fair once a proper investigation ensues, and a disciplinary hearing is held to comply with procedural fairness standards.
209 Labour Relations Act 66 of 1995 (‘LRA’).
210 S 188 LRA.
211 J Du Plessis & M Fouche op cit note 62 at 322.
212 Cronje v Toyota 2001 (3) BALR 213, 224-225 (CCMA).
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