FACEBOOK, LINKED-IN, TWITTER: THE DISMISSAL DANGER…..
Whether you are an employer or an employee, be warned – as social media use rockets, the potential for harm from online griping increases exponentially.
Employees: Notes from the Trenches
The problem is that any negative post you make could well spread like wildfire, whether or not you mean it to. In the Internet Age, your “private” thoughts go public – permanently - as soon as you post them online, or share them with the Twitterverse. And if they are derogatory - of the boss, the business, the buyers or the suppliers – you risk doing untold damage to both your employer and to your fellow employees.
And that, as confirmed by several recent CCMA (Commission for Conciliation, Mediation and Arbitration) rulings, could well result in your dismissal.
For example - the CCMA upheld the dismissals of both an operations manager and a bookkeeper who had posted on Facebook a variety of derogatory comments about their employer and other management, featuring insults in the vein of “what an idiot”, “dumb brats” and “mickey mouse business”. As the Commissioner put it: “If employees wish their opinions to remain private, they should refrain from posting them on the Internet”.
Adjusting your privacy settings to a restrictive level is a lot better than nothing, but it’s not fool proof. Rather play it safe and keep your gripes out of cyberspace altogether – once they’re out there, you can’t recall them!
And a Linked-In profile lets the cat out the bag
A recent High Court case highlights another danger of not thinking before you post. An ex-employee was held to his restraint of trade agreement after the Court held that his Linked-In profile showed that he had been – despite his protestations to the contrary - privy to confidential strategic information and customer connections, and had had contact with clients of his previous employer.
Employers: a Checklist
Prevention being better than cure, put these measures in place before you have a problem: -
Review your staff policies and employment contract terms relating to Internet use during office hours, email content etc.
Review your RICA (Regulation of the Interception of Communications and Provision of Communication-Related Information Act) policies regarding monitoring of electronic communication in the workplace – unauthorised monitoring risks breaching Constitutional rights to privacy.
And be aware that even when an employee’s misconduct warrants disciplinary action, dismissal may not always be the appropriate sanction – take advice in doubt.
YOUR SEA VIEW - CAN THE NEIGHBOURS BLOCK IT?
The High Court has yet again grappled with the thorny question of when prejudice to a neighbour’s view, caused by a newly-constructed building, will justify the granting of a demolition order against the owner of the new building.
The holiday home that blocked the neighbour’s view
In contention was a house which, although described as a “luxurious holiday home”, was in fact used by the owner as his prime residence. Some 75% of a neighbour’s “panoramic” sea and river views had been obscured as a consequence of the house’s roof exceeding the local height restriction by a whopping 9.5 metres.
Crucially, the house was found to be an “unlawful structure”, thus entitling the local municipality to apply for demolition.
Is demolition always ordered?
The Court rejected the argument that it wasobliged to order demolition of such an unlawful structure, and found rather that it had a discretion whether or not to do so.. The importance of this is that courts are generally reluctant to order demolition of “valuable and fully constructed” buildings if other remedies are available (perhaps alteration of the building to comply with restrictions, or an award of damages to affected neighbours).
In essence our courts will exercise their discretion by considering the “just and equitable effects” of a demolition order, the “proportionality” of prejudice to the various parties, and questions of lawfulness and policy. In other words, they will look at all the circumstances of each matter before deciding whether or not to order demolition.
The owner loses R9.1m
In this case however the Court ordered the owner to demolish his home, giving him 6 months to do so.
Whilst acknowledging the hardship and financial calamity that this order will cause the owner (the house being worth some R8.1m and the demolition set to cost him at least R1m), the Court held that, in all the particular facts and circumstances of this matter, no injustice would result.
Two factors in particular seem to have weighed heavily with the Court in reaching this conclusion –
The owner’s decision to continue with construction after an application had been instituted to set the building plans aside (his claim to have been an “innocent victim” of circumstances beyond his control finding no favour with the Court), and
The prejudice to the owner if demolition was ordered was not “disproportionate” to the prejudice to the neighbours if demolition was not ordered. The important point is the Court’s confirmation of the general principle that your neighbour cannot “unduly” interfere with your reasonable use and enjoyment of your property. And that may well include any “undue and unreasonable” interference with your view.
Media reports suggest that the owner will now appeal the demolition order, in which event the Supreme Court of Appeal will have the final say here, but for now the message is clear – disregard building regulations, and your neighbours’ rights, at your own risk!
DIRECTORS AND “DELINQUENCY”: ANOTHER RISK
Here’s another warning to all company directors – the new Companies Act, in force now for just over a year, has greatly increased your risks and obligations.
One danger is being declared a “delinquent director” – which in the case of serious contraventions can debar you for life from holding any directorship or senior management position. Even a less serious transgression could result in a lengthy disqualification of at least 7 years. That’s in addition to possible civil liability for any losses incurred, and even possibly criminal prosecution.
Critically, in some circumstances a failure to act correctly need not be intentional. Negligence is enough in some cases to land a director in serious trouble if, that is, a court considers it to be “gross” negligence.!
The risk is real – a delinquency order was granted recently by the High Court against a company director, on the application of the other director, the Court finding that the delinquent director was guilty of conduct that “fell short of the standard expected of a director …… to such an extent that it amounts to wilful misconduct, breach of trust and a gross abuse of his position as a director”. Specifically –
He allowed monies destined for the company (two VAT refunds totalling R61m) to be paid to another enterprise, to the company’s detriment
He failed to detect a R39m VAT fraud on SARS based on fictitious tax invoices (which failure, said the Court, amounted to “gross negligence”)
He failed to alert his co-director and co-shareholder to the above
He failed to repay the R39m to SARS on detection of the fraud
The delinquent director (who has reportedly been refused leave to appeal the order) now also faces a R22m claim from the company, together with threats of a further R136m claim (the total amount which SARS is now claiming from the company).
Note that a delinquency declaration (and its slightly less serious cousin, the “probation order”) can be applied for by any interested parties such as fellow directors, shareholders, employees or trade unions. And pretty much any form of serious misconduct or breach of trust, even if totally inadvertent, could risk such an application – so tread with care!
EMPLOYERS, EMPLOYEES: NEW EARNINGS THRESHOLDS 1 JULY
Overtime limits and pay, working hours regulation, Sunday work, meal interval regulation – these are some of the protections and benefits in terms of the Basic Conditions of Employment Act (BCEA) which don’t apply to employees whose earnings exceed a specified threshold.
From 1 July this threshold increases to R183,008 p.a. (from R172,000) - but note that some of these benefits don’t apply to certain classes of employee (senior management, some sales staff, and employees working less than 24 hours a month), nor in certain circumstances – take advice in need.
RIOT WRECKAGE – SUE THE ORGANISERS!
The Constitutional Court has confirmed a trade union’s liability for riot damage caused when a strike-related protest march ‘degenerated into chaos’, causing some R1,5m worth of damage to vehicles and shops along the route.
So if you are unlucky enough to suffer any loss or damage from a riot arising from a “gathering” (defined below) take advice on whether you have a damages claim against the organisers (of course the rioters themselves will generally be less likely to be able to settle your claim).
Note -
A “gathering” here refers, in broad terms, to any public “assembly, concourse or procession” of more than 15 people, convened to express support or criticism of individuals or organisations (the full definition is complex – take advice in doubt).
We all have an important Constitutional right “to assemble, to demonstrate, to picket and to present petitions” - but only “peacefully and unarmed”.
It isn’t just trade unions who risk liability here – “every organisation on behalf of or under the auspices of which that gathering was held, or, if not so held, the convener” is jointly and severally liable for the riot damage. So your claim could lie against any organiser/s of such a gathering.
The organiser/s can avoid liability via one of several possible defences – for example by showing that the act or omission leading to the damage “was not reasonably foreseeable” and that it “took all reasonable steps within ...... its power to prevent the act or omission in question”. Any person or organisation planning any “gathering” should take heed accordingly.
THE JULY WEBSITE: DON'T GET RIPPED OFF ROAMING!
“Roamin' in the gloamin' wae my lassie by my side….” (Sir Harry Lauder)
When you go roaming internationally with your cell phone as well as your lassie by your side, you may want to heed the advice in “Mobile operators’ rip-off scheme” on the Moneyweb site http://www.moneyweb.co.za/. The conclusion is: “Purchase a prepaid service in the country you are visiting and avoid getting an exorbitant bill from your South African cellular provider”, but if you really must use your current SIM card, first check on your service provider’s website for tips and instructions on minimising roaming costs – www.cellc.co.za, www.vodacom.co.za or www.mtn.co.za.
Enjoy July and if you are traveling be safe on the roads!
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