Warning for South Africans working from home

Heike Hartnick is a recent Master of Laws graduate from the University of the Western Cape and a candidate legal practitioner. 

She has spent the past year exploring the legal grey area, which is becoming increasingly relevant in today’s digital and remote-working world. 

This area concerns dismissals for misconduct outside the physical workplace, particularly misconduct on social media.

“Considering the recent pandemic that we all experienced, there have been a lot of issues and increased misconduct,” said Hartnick. 

“Working hours have become more of a suggestion for some employees, especially under work-from-home policies that developed after the pandemic.” 

She explained that for employees working remotely, the absence of traditional supervision has led to blurred lines between professional and personal conduct. 

“People became more flexible, they’d go fetch their children from school, delay work responsibilities, or be active on social media during office hours,” she said.  

One of the main challenges is that South Africa’s existing labour legislation, particularly the Labour Relations Act (LRA), was written before the rise of social media and the widespread adoption of remote work. 

“The legislation does not define social media misconduct specifically,” she explained. “This means employers and employees are both unable to determine under which circumstances dismissal is an appropriate sanction.”

While some instances may seem obviously dismissible, such as making defamatory or discriminatory remarks online, Hartnick points out that many cases are less clear-cut.

“There are many who are simply unaware of their rights and responsibilities when it comes to being dismissed for what they post, like, or share on social media,” she said.

The result is a growing number of workplace disputes that are testing the limits of outdated labour frameworks.

Watch what you say online

Hartnick noted that some cases have involved social media misconduct brought before the Commission for Conciliation, Mediation and Arbitration (CCMA), but the legal precedents remain fragmented and incomplete. 

“Over the past few years, there have been more and more of these cases, and social media conduct is taking a bigger toll on both employers and employees,” she noted.

Importantly, Hartnick distinguished between overtly offensive content and more subtle breaches of conduct. 

“Yes, posting misogynistic or homophobic content that brings a company into disrepute is an obvious issue,” she said.

“However, there’s also the matter of simply being on social media during designated working hours or using it in ways that violate the expectations of your employment contract.”

She believes this type of conduct is becoming increasingly relevant and problematic, as more South Africans work remotely and navigate looser schedules.

The situation becomes even more complex in industries like sport or influencer marketing, where public image is central to contractual relationships. 

“If someone is contracted to a brand or club, and they post something controversial or behave poorly online, it can damage that brand’s image,” she said.

“This can breach their agreement’s moral or reputational clauses. But again, the law hasn’t yet caught up with these realities.” 

For employers who want to prevent these kinds of disputes, Hartnick strongly recommends implementing comprehensive social media policies. 

“Many employment contracts don’t explicitly regulate conduct during working hours, and few have detailed social media clauses,” she said. 

“This creates confusion for both parties. It blurs the lines and leads to uncertainty about what is acceptable.”

No such thing as posting in your “personal capacity”

Hartnick’s concerns echo those of social media lawyer Emma Sadleir, who noted that South African law is catching up and actively punishing inappropriate posts.

She said that most of the activity was happening in employment law, where people are fired or disciplined due to their social media activity.

Sadleir referenced a case out of KwaZulu-Natal a few years ago, where an individual commented on an article calling for the killing of white people.

“It was after hours on a Saturday night from his personal phone, in his personal capacity. He’d never had any access to tech at work, and he was fired,” she said.

In his defence before the Council for Conciliation, Mediation, and Arbitration (CCMA) and the labour court, he argued that the post was in his personal capacity.

However, the court said there is no such thing. He also argued that the company’s social media policy should not apply to him as he had never been trained in it.

“The court just said it’s modern-day South Africa. You don’t need to be taught not to be racist,” Sadleir explained.

She warned that South Africans should take care of what they say online. “You are who you are in the real world when you go online,” said Sadleir.

Issued on BusinessTech by Malcolm Libera | https://businesstech.co.za/news/business/829245/warning-for-south-africans-working-from-home/