The Sunday Mail
Francis Mupazviriho
The rise of the Internet in general and the proliferation of social media in particular has naturally forced us to look at the emerging forms of misconduct at the workplace.
We are also forced to examine the legal precepts and the attendant complexities in dealing with such cases, whether they are done wilfully or not, or conducted within one’s professional setting.
But one thing is certain: the workplace has been affected by the pervasive influence of a new digital world.
Either by design or by default, one’s private life is now inextricably linked to their workstation.
The power of social media — which has the ability to instantly reveal one’s identity and their workplace — is quite apparent.
Cyber trolls and bullies usually feast on such information by bringing pressure to bear on the affected person.
So, we are clearly not safe.
Similarly, there are issues that have connotations on corporate brands, which I will look at later on.
Today, I will particularly focus on the recent viral video in which a young lady, who was evidently speaking in jest, asked for potential suitors to propose love to her ahead of Valentine’s Day.
The young lady became the subject of unending jibes on social media.
She even considered committing suicide.
Her woes were worsened when trollers plucked a sexually explicit video from the internet of an older woman who looks like her and purported that it was her sex tape.
Not surprisingly, some Zimbabweans saw the funny side of it.
Most notably, a local fast-food outlet ingeniously developed a tagline from the lady’s original “propose to me line”.
Wary of the potential collateral damage that this furore could have brought to its own brand, the young lady’s employer decided to suspend her.
However, social media aficionados spawned a hashtag movement on Twitter for the lady to be reinstated.
This development cast a new light on social media, employee and employer rights, the sanctity of private life, including sensitivities surrounding corporate image and brands.
Labour Law
It, therefore, becomes important to locate our legal framework with regards to labour and human resources-related questions of the disciplinary procedure.
In this regard, it is important to refer to the Constitution(which is supreme), the Labour Act (Chapter 28:01) and relevant Statutory Instruments.
It is important that these exist under the framework of International Labour Law.
For reference’s sake, it is also important to highlight Statutory Instrument (SI) 1 of 2000 (the Public Service Regulations), which are quite extensive, but only apply to workers in the public service.
Let us discuss suspension and dismissal in general terms.
Section 65 of the Zimbabwean Constitution provides for labour rights, which include just, equitable and satisfactory conditions of work.
Section 69 further provides for any accused person, having committed an offence, to a fair trial and to have access to courts or any tribunal or forum established by law for the resolution of a dispute.
Finally, any accused person is presumed innocent until proven guilty.
This also applies to labour disputes.
Similarly, these rights are also guaranteed by Sections 6 and 7 of the Labour Act Chapter [28:01], which relate to the protection of employees’ right to fair labour standards.
Finally, it is key to make reference to the Labour (National Employment Code of Conduct) Regulations of 2006.
It is arranged into nine sections, which include termination of employment contracts, disciplinary procedures, and penalties and appeals.
Under this code, misconduct refers to actions which include: neglect of duties, absenteeism, theft or fraud, gross incompetence and “habitual”/” substantial” neglect of duties.
Various sectors — tourism, agriculture, communications et cetera — have sector-specific SIs.
The SIs are negotiated under Collective Bargaining Agreements (CBA), which cover a very large scope that include conditions of service.
Some CBAs classify misconduct differently: it can be minor, moderate, severe and extreme.
However, CBAs have to be exhaustive in terms of disciplinary processes.
Some indiscretions that are usually described as “acts inconsistent with one’s duties,” or acts of “omission” generally cover misconduct that is discretionary to the employer.
Usually these arise where an employee’s acts are at variance with the set norms and values as pronounced in sectoral codes of conduct.
Depending on the type of misconduct, even if it is committed online, employers still have to follow due process in instituting disciplinary proceedings.
Further, the disciplinary committee has to be duly constituted and follow laid-down rules and procedures.
This gives room to procedural rights, especially in the case of appeals that might arise if the employee feels aggrieved with the process.
Any disciplinary action that is mete out has to be proportionate to the act of misconduct.
Impact of social media
Employees are usually tied to the employer during the subsistence of the contract of employment.
This contract calls for the protection and promotion of the brand which one works for, whether small or big.
There is often an expected code of conduct, which outlines how one is supposed to behave at work and even outside duty.
These can constitute egregious offences and covert/indirect actions at variance with one’s expected probity.
This explains why men of cloth are excommunicated for committing adultery, contrary to the moral and spiritual demands of the office they hold.
Likewise, lecturers are also dismissed for leaking exam papers.
There are instances where diplomats have lost their jobs for minor indiscretions such as urinating in public.
Social media has added a new dimension to acts of misconduct as employees are increasingly being held liable for their online activities.
Last year, a South African immigration official who was stationed at Beitbridge Border Post was suspended for fiddling with her phone at a time when she was ordinarily expected to be serving travellers.
Perhaps one of the most damaging cases involved ex-South African Home Affairs Minister Malusi Gigaba, who resigned after an explicit video clip he recorded on his phone went viral.
So, depending on the position one holds and the expected decorum of his/her office, it is not uncommon for them to even resign before disciplinary processes are instituted.
Not only does this highlight the power of social media, this also proves the indubitable fact that one’s private life is directly linked to their official functions.
Despite changing dynamics, employers still have a duty to rein in on acts of misconduct, even when they are conducted online.
It can be argued that nothing untoward was said in the “Valentine’s video”, but the employer felt that this could have potentially dented their brand.
Employers really need to reflect before making hurried decisions.
They should also make sure that they formally communicate with the affected employee.
Knee-jerk reactions to acts of conduct that would have been committed on social media are unhelpful.
It must be noted that a lot of unverified and scandalous information goes viral on social media, most of which is engineered by unscrupulous individuals. Both the employer and the employee are likely to be affected by scandalous information that is contrived on social media.
Quite clearly, social media is a minefield that has to be managed accordingly. The question of whether conduct on social media has to be adopted in the overall framework of the code of conduct at workplaces, or it has to be drafted as a separate stand-alone policy, is a subject of another day.
What, however, remains clear is that the current legal framework seems to provide sufficient grounds to govern conduct.
Companies in the developed world are in the process of coming up with clear-cut social media policies that guide employer and employee relations on internet platforms.
It is clear that no matter how much we try, some of the indiscretions we do in private often end up in public.
The drive to go public with every detail of our lives almost always ends up affecting us and, in some cases, poisoning our relationships at the workplace.
Both employers and employers, therefore, have to be wary of the new dynamics that have been spawned by social media.
Francis Mupazviriho wrote this article in his personal capacity. He can be followed @FMupah or [email protected].
