In an age where personal and professional lives intersect on social media, morality clauses in employment contracts have gained increasing significance. These clauses are designed to protect businesses from employees’ conduct that could harm their reputation, whether during work hours or in their personal time. In South Africa, the legal landscape around morality clauses and the consequences of “morally grey” social media posts that reflect poorly on employers warrants careful consideration under employment law and constitutional rights.
A morality clause, sometimes referred to as a conduct or behavioural clause, is a provision in an employment contract that requires employees to adhere to certain standards of behaviour, both in and out of the workplace. These clauses protect the business’s interests, ensuring that an employee’s actions align with the company’s values and public image. In the South African context, morality clauses may be drafted to specifically address behaviour on social media platforms, considering the growing potential for reputational harm in an online setting.
The Constitution of South Africa, the Labour Relations Act (LRA), and case law form the bedrock of the legal framework that regulates employers’ and employees’ rights and responsibilities. Section 23 of the Constitution guarantees the right to fair labour practices, and the LRA provides mechanisms to address misconduct, which includes behaviour that could be considered inappropriate under a morality clause.
However, morality clauses intersect with the employee’s constitutional rights to freedom of expression and privacy (sections 16 and 14, respectively). As such, a careful balance must be maintained between an employee’s right to self-expression and the employer’s right to protect its business interests and reputation.
“Morally grey” social media posts refer to content that may not be explicitly illegal or offensive but could be perceived as controversial or damaging to a business’s image. Examples include posts that indirectly criticise an employer, express views inconsistent with company values, or display behaviour that society may frown upon. When employees make such posts, they can create reputational risks for employers.
The key question in such cases is whether the employee’s social media activity has a tangible negative impact on the employer’s business, reputation, or working environment. For instance, an employee posting politically or socially controversial statements that may be associated with their employer could lead to disciplinary action if it is deemed to violate the morality clause.
South African labour law recognises that employee misconduct may justify disciplinary action, including dismissal, particularly if it affects the employment relationship or the employer’s reputation. The following are potential repercussions of morally grey social media posts:
The employer may initiate disciplinary action if a morally grey post is found to have violated the morality clause in the employment contract. The nature of the action will depend on factors such as the severity of the post, the employee’s role, and the potential harm to the business. For example, if a senior executive makes a post that offends a significant segment of the customer base, it could be grounds for serious disciplinary measures, including dismissal.
Dismissal may be appropriate in cases where the employee’s conduct has brought the company into serious disrepute, especially if the employee holds a public-facing or leadership role. However, any dismissal must be substantively and procedurally fair in accordance with the LRA. The employer must show that the misconduct has damaged the employment relationship to an irreparable degree and that less severe corrective measures would not suffice.
In some cases, morally grey posts could also be construed as defamatory to the employer. If the post explicitly or implicitly damages the business’s reputation, the employer may seek legal recourse beyond disciplinary action, such as filing a defamation suit. However, this is typically more difficult to prove and is less common in the employment context.
South African courts have consistently affirmed the principle that employees have a duty of good faith towards their employer, which extends to their conduct on social media. In the case of Sedick & Another v. Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA), the employee was dismissed for posting disparaging remarks about the employer on Facebook. The court found that such conduct constituted a breach of the employee’s duty of good faith and justified dismissal.
The case of National Union of Public Service & Allied Workers obo Mani and others v. National Lotteries Board (CCT 75/13) [2014] ZACC 10 also highlighted that while employees have the right to freedom of expression, this right is not absolute and must be balanced against the legitimate interests of the employer.
To mitigate the risks associated with morally grey social media posts, employers should consider the following:
Morality clauses play an important role in safeguarding a company’s reputation, especially in a social media-driven era where personal expression can quickly become public controversy. In South Africa, while employees enjoy constitutional rights, those rights must be balanced with their obligations to their employer, particularly when their conduct could reflect negatively on the business. Employers must tread carefully, ensuring that morality clauses are reasonable, well-drafted, and fairly enforced. At the same time, employees should be mindful of the impact of their social media presence on their professional standing.
By clearly defining expectations and adhering to fair disciplinary practices, employers and employees can better navigate the challenges arising from morally grey areas in the digital world.