Beware this completely avoidable job killer in South Africa

South Africans who post offensive content online are not immune to the repercussions or disciplinary action by their employers, whether they’re off duty, on leave, or posting on their personal profiles.

According to legal experts at Wright Rose-Innes, there is a misconception that “personal capacity” posts on social media are off-limits to employers.

However, if an employee’s actions can ripple back to their place of work, case law in South Africa shows they may not be protected.

“As a general rule, employers do not have the authority to discipline employees for conduct that occurs outside the workplace and is unrelated to their work,” the legal experts said.

“However, as with any general rule, there may be exceptions.”

A recent Labour Court case showed that an employee could be dismissed fairly due to posts they made on social media while on holiday.

In this case, the court was asked to consider whether an employer has the right to discipline an employee for actions committed outside of the work environment.

In this case, an employee of a company, where they held a senior position, took to their personal Facebook profile and posted content that was deemed racial and derogatory,

While the profile itself was the employee’s personal account, they had indicated their place of employment on the profile.

One of the company’s customers saw the post and brought it to the company’s attention.

The company then initiated formal disciplinary proceedings against the employee, and they were subsequently dismissed.

The employee took the case to the Commission for Conciliation, Mediation and Arbitration (CCMA), where the dismissal was overturned, but the matter ended up before the Labour Court.

The company argued that the CCMA had misconstrued the reasons for the employee’s dismissal and contended that they were dismissed for posting racial and derogatory content on social media.

This, in turn, exposed the company to “undue reputational risk”.

“In arriving at its decision, the Labour Court considered whether there was a causal link between the employee’s conduct and the company’s business,” the legal experts noted.

“It found that the fact that the employee’s Facebook profile indicated that they were a company employee did indeed establish that connection.”

The court held that the dismissal was fair even though the statement was posted on a private Facebook profile, because it exposed the company to potential reputational damage.

“This case is a stark reminder that your ‘off-duty’ life online isn’t always off-limits. What you post—even in a personal capacity—can echo into your workplace, especially if it’s tied to your employer,” the legal expert said.

“So, before you hit post, make sure it’s not a career-ending move.”

There is no posting in a personal capacity

The case is just the latest in a long line of legal views that show that South Africans cannot hide behind “personal capacity” when posting on social media.

Social media experts have warned workers for decades that there is no ‘magic wand’ to absolve them of any responsibility where their digital lives upset their employers.

The CCMA, too, has been fairly consistent in its rulings on social media posts. If you bring your employer into disrepute, you can be fired.

Social media lawyer Emma Sadleir noted that South African law is catching up with many workers and actively punishing inappropriate posts.

She flagged a rise in cases where people are fired or disciplined due to their social media activity, with other legal experts noting a strange source: work from home.

Amid a rise in remote work policies, many employees have blurred the lines between ‘on duty’ social media use and ‘off duty’ use.

As the recent cases show, however, there is virtually no difference, and employees must be aware that they will be held liable for what they say.

Sadleir flagged cases where employees tried to raise “personal capacity” as a defence, and the courts have again made it clear that there is no such thing.