Ins and outs of WhatsApp messages that can get you fired

Employees should know which WhatsApp messages could get them fired and ensure they do not share their opinions in a way that will breach their duty of good faith towards their employers.

According to legal firm Wright Rose-Innes, a dismissal is unfair in terms of the Labour Relations Act if an employer fails to provide a fair reason for the dismissal, or if the dismissal did not follow a fair procedure.

Establishing whether there are fair reasons for dismissing an employee for misconduct, the employer must consider:

Did the employee contravene a rule or standard regulating conduct in the workplace;

If the rule or standard was contravened, was it a valid or reasonable rule or standard;

Was the employee aware, or reasonably be expected to be aware, of the rule/standard;

Did the employer apply the rule consistently;

Is dismissal an appropriate sanction?

These factors would have to be considered when deciding whether an employee’s post or message on social media or WhatsApp group constitutes grounds for dismissal.

Case study

The firm uses the example of a recent Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration to decide whether an employee dismissed for a WhatsApp group message was fair or not.

In this case, a senior employee of a security company working at a client posted a message on the client’s WhatsApp group advocating for employees not to be vaccinated against Covid.

The client company encouraged its employees to get vaccinated and incentivised employees who did.

The dismissed employee took issue with this incentive, but his employer informed him that they as a contracted security company to the client, were not involved in the policies of the client and accordingly instructed the employee to keep his opinions to himself.

Despite these instructions, he posted an article on the client’s WhatsApp group which included members of senior management, that discourages employees from being forced by their employers to be vaccinated.

The employer dismissed the employee and the employee referred the matter to the CCMA for arbitration. It found that:

Although the issue of vaccination is controversial, the client company was not imposing mandatory vaccinations, but incentivising employees to consider it.

The employee, despite protesting he was merely sharing information, clearly aligned himself with the article.

The WhatsApp group had not been established for the purpose the employee used it for and he was aware of it.

Although there was no specific rule about not posting on the group, it was reasonable that an employer could not be expected to publish a rule for every possible transgression.

It was not the employee’s place to warn the client or employees about the client’s policies.

The employee’s actions brought the employer into disrepute, with the client on the verge of terminating the contract.