Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

de­ri­sive of the com­pany or em­ploy­ees of the com­pany but are gen­er­ally of­fen­sive re­marks that may or may not be racist or amount to hate speech. Such con­duct, at best, amounts to off-duty mis­con­duct.

What an em­ployee does af­ter work gen­er­ally falls out­side the scope of the em­ploy­ment re­la­tion­ship and, ac­cord­ingly, the em­ployer has no right to dis­ci­pline an em­ployee for this con­duct. How­ever, if it can be shown that there is a link be­tween this con­duct and the em­ployer’s busi­ness, an em­ployer may be en­ti­tled to dis­ci­pline the em­ployee.

Mis­con­duct on so­cial me­dia takes “off-duty” mis­con­duct to a new level. So­cial me­dia posts are both writ­ten and, more of­ten than not, pub­lished to a wide or po­ten­tially wide au­di­ence. There­fore the po­ten­tial for brand dam­age or work­place ten­sion is sig­nif­i­cantly higher.

The in­evitable ques­tion is whether an un­savoury post or tweet con­sti­tutes a fair rea­son to dis­miss an em­ployee. To an­swer this it must be de­ter­mined if the con­duct of the em­ployee on so­cial me­dia caused dam­age or had the po­ten­tial to cause dam­age to the em­ployer’s good name and rep­u­ta­tion and if the con­duct of the em­ployee im­pacted neg­a­tively or had the po­ten­tial to im­pact neg­a­tively on the work­place. Where this is found

Pic­ture: iSTOCK

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