Social media comments by employees: A ground for dismissal?
Social media has been broadly defined as “the many relatively inexpensive and widely accessible electronic tools that enable anyone to publish and access information, collaborate on a common effort, or build relationships” [Murthy, Dhiraj (2013)].
The last two decades have witnessed a paroxysm of social media awareness and activism amongst different classes and categories of persons in Nigeria and indeed the world over. From the educated and semi-educated to the non-educated, there has been a growing subscriber base to popular social media sites such as Facebook, twitter, instagram, LinkedIn etc.
Initially this new phenomenon was not regarded as a business tool but rather utilized amongst students, friends and family. It was only recently that its use gained more prominence within the business community. According to the Harvard Business Review in April 2014, “Fifty-eight percent of companies in the US are currently engaged in social networks like Facebook, micro blogs like Twitter, and sharing multimedia on platforms such as YouTube” and the same source in May 2015 stated that LinkedIn had become the most popular social network for top business executives in the US in 2014. Though the statistics above does not take cognizance of the use of social media by Nigerian companies, it is evident that blue chip companies in Nigeria are also rapidly embracing the use of the social media as a means of enhancing their business fortunes.
Whilst the benefits of social media are easily identifiable, there are attendant fall-outs of its usage particularly by employees, some of whom have been relieved of their employment for their activities on social media which often appears or may have appeared as denigrating and or maligning to their employers.
Employees’ Right of Privacy and the use of social media
In Nigeria, many employers are presently re-orientating their work force and adopting new strategies on social media marketing in order to boost their business fortunes given stiff and intense competition. They have registered their presence on popular social media platforms such as Facebook, twitter, LinkedIn etc. and encourage their employees on the active use of these platforms in the discharge of their duties.
One of the likely fallouts of the use of social media by employees in the discharge of their duties is the probable abuse by the employees through reckless and or negligent comments made on social media that are deemed to be against their employers’ interests and or public image. There have been no reported cases in the media or in our law reports relating to the dismissal of an employee for the misuse of social media in the course of their duty but if employers in Nigeria were indeed faced with such an issue, can they dismiss their employees as it obtains in other jurisdictions and if so would the dismissal be justified under the current employment laws in Nigeria?
Perhaps, a useful starting point is an analysis of what constitutes social media misconduct and this can be said to be dependent on a number of factors such as whether there is a firm policy in place by the employer regulating the use of social media by its employees; whether or not comments made by the employee in the social media space are indeed denigrating of the employer and a threat to its interests; and whether the comment is injurious to the employer in the eyes of the public such that it could occasion loss to the employer both economically and in loss of reputation. Other factors include the employee’s position and record of employment or the intention of the maker of the comment (this is a remote consideration). These considerations vary from one country to the other and may also depend on the prevailing socio-economic circumstances at the time of the misconduct.
In most developed countries there are cases of employees who have been dismissed for social media misuse most of which have been determined based on the existing laws or policy in the country in question. In Nigeria, an employer reserves the right to hire and fire – in this context ‘dismissal’- at will. This right is implied in every contract of employment and need not necessarily be spelt out in writing. Given that an employer could hire and fire at will, it is perhaps valid to examine the issue more from this narrower perspective: can a Nigerian company that has a grievance policy in place to govern social media misconduct dismiss an employee based on the misuse of social media? To the best of our knowledge, there is currently no judicial decision on the issue in Nigeria and so it would be interesting to see how our judges opine on the above scenario. That said, the issue has been judicially determined in a number of jurisdictions and it may be worthy to assess some of the reasoning in these cases.
In the Canadian case of Groves v. Cargojet Holdings Limited (2011) C.L.A.D. No.257, an employee posted on her Facebook page comment suggesting that she hated her lead hand at work. She also made other insulting comments against her co-workers and her workplace. The Adjudicator in deciding the case held that the comments were “not materially connected to the workplace and did not give rise to a substantial concern about the company’s ability to successfully carry out its business because the employee made no commentary on the professional aspect of the Company’s services” and accordingly reinstated the employee with an award of a month’s salary in her favour. The above case is in contrast to the decision in the case of Re Lougheed Imports Limited (c.o.b. West Coast Mazda) (2010) B.C.L.R.B.D. No.190. The facts of this case are that two employees who were employed by West Coast Mazda had made a number of posts on their Facebook profiles that ranged from ventilating their frustrations in their workplace to “offensive, insulting and disrespectful comments” about their supervisors. In determining the case, the British Columbia Labour Relations Board found that the employees’ comments were offensive and were properly dismissed.
There are a number of other inappropriate conducts on social media by employees which have been held to be misconduct and warranted a dismissal. In Crisp v Apple Retail (UK) Limited (2011), ET/1500258/2011, an employee was dismissed for making comments online about his employers and the company products. The Employment Tribunal held that the employee’s dismissal was deemed to be fair as the employee’s comments were likely to damage the employer’s reputation. This was in addition to the fact that the employee had received training on how to properly use social media in the context of his employment. Furthermore other acts of employees on social media that have been held to amount to gross misconduct thereby warranting a dismissal include employees posting photos of themselves enjoying leisure activities whilst “off sick” (Gill v SAS Ground Services UK Limited – ET/2705021/2009). Although, with Alan Blue v Food Standards Agency an employee was dismissed after ‘liking’ a Facebook comment about his boss being attacked with a chair. His employer argued that his posts were unprofessional and a breach of trust. The employee appealed and was found to have been unfairly dismissed and awarded £32,000 in compensation. The tribunal stated that the decision was based on the employee’s flawless record.
In Adrian Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch), the Plaintiff, Smith, posted two comments on his Facebook page which referred to his disapproval of gay marriages taking place in churches. The comments led to his suspension from work at the Trust. Subsequently, there was a disciplinary hearing, which resulted in a finding of gross misconduct against Smith. It was recommended that he be dismissed. Instead, due to his long record of loyal service, he was demoted with immediate effect, to a non-managerial position. At the hearing of the case, Smith claimed damages for breach of contract on the basis that there was no gross misconduct in posting two comments on his private Facebook page. The employer argued that by making the two postings on a Facebook page which identified him as one of its managers, Smith breached the Code of Conduct for its employees and acted contrary to its Equal Opportunities Policy. The Court held that the comments made by the employee were not in contravention of the Trust’s Code of Conduct or other employment policies which the Court viewed objectively.
It appears and particularly from the last case, that employees who are faced with the threat of dismissal based on their comments on social media platforms can invoke their privacy rights as a shield and possible defence to any disciplinary procedure. Perhaps in arriving at a decision if a wrongful dismissal suit premised on social media misconduct is brought before Nigerian courts, there would be need to analyze the Constitutional rights to privacy of employees and the right to freedom of expression as enshrined in Sections 37 and 39 respectively.
Section 37 of the 1999 Constitution of the Federal Republic of Nigeria [as Amended] (“the Constitution”) safeguards the right of individuals as regards their homes, correspondence, telephone conversations and telegraphic communications. The scope of privacy here pertains to information relating to private life e.g. private communications on religion, sexuality, belief, views on issues etc. Section 39 (1) of the Constitution entitles an individual to freedom of expression and the freedom to hold opinions and seemingly balances the right to private life.
These two constitutional provisions may give justification to an employee’s comments or posts made via social media. The latter provision has been the subject of conflicting interpretations as to whether or not the right is absolute given that it is subject to certain limitations under Section 45 of the Constitution. Such limitations include defence, public safety, public order and morality or for the purpose of protecting the rights and freedom of other persons.
France, rated amongst the highest in Europe in terms of internet users, has in place detailed and restrictive legal policies regarding the use of the Internet. The Employment Law Review (2012) in France suggests that information found on social media sites could be used by employers for checking an individual’s background and could also be employed as evidence for dismissal of an employee. Although France appears to have, like most other nations, legislations that protects freedom of expression, the rights conferred by these legislations appears to have been restricted by the defamation and privacy laws which have made the exercise of these rights almost impracticable.
China in its quest to promote what it calls the true freedom of speech has issued restrictions on the use of social media by promulgating several internet censorship laws to restrict employees from uncontrolled use of social media. This is as a result of the damage done to people’s rights on account of social media freedom. This step by the Chinese Government appears to be in support of employers in their bid to manage the use of social media.
In the United States, most states have in place legislation on the use of social media sites by employees with employees required to disclose their usernames, passwords, or any other similar access particulars for personal accounts held on social media sites like Facebook, twitter, Instagram etc. to their employers so that the latter can gain access to checkmate their activities on social media. This practice has recently come under fire as breaching the privacy rights of individuals and has given rise to legislations regulating the extent to which employers can monitor their employees’ social media presence in some states.
Nigeria seems to be bracing itself towards enacting restrictive laws on the use of social media however there is doubt as to the workability of such laws in Nigeria. The Frivolous Petitions (Prohibition etc) Bill 2015 presently before the Nigerian Senate is grappling to gain acceptability amongst the populace as evidenced by the sheer magnitude of public outcry thus far against its passage. Although the purpose of the Bill is to prohibit frivolous petitions against any person, certain provisions of the Bill makes it an offence to post via social media or any similar platform any abusive statement knowing same to be false with the intention to set the public against any person or group of persons and makes the offence punishable with imprisonment of 2 years or a fine of 2million Naira or both.
It has been contended that the implication of some of these provisions is that an employer can not only dismiss the employee for social media misconduct but also seek such employee’s prosecution for a criminal offence. This Bill without any doubt has a correlation with the anti-social media laws in France and China to the extent that it operates as a clog in the practical enforcement of the rights guaranteed under the Constitution.
Conclusion
In the absence of any law and or judicial precedent in Nigeria on social media misconduct by an employee warranting dismissal or otherwise, perhaps as a precautionary measure to curb any reputational loss occasioned by an employee’s social media misconduct, the onus falls on an employer to put in place a policy document and or guidelines on the use of social media in the workplace.
It must be observed that Corporations with viable and active social media policy framework in place tend to manage employees better than those without one. This we believe is a point for employers in Nigeria to take home.
GEORGE UKWUOMA
George Ukwuoma is a Member of the Dispute Resolution Group at Advocaat Law Practice