The COVID-19 pandemic significantly shifted the way in which people work. There has been a push to move online and, as a result, a number of work-from-home arrangements have been made. However, these types of arrangements pose challenges to management in terms of monitoring performance and ensuring that work outputs are timeously delivered.
A case in point is that of Lucas Dysel Crouse Incorporated v Commission for Conciliation, Mediation and Arbitration and Others (C784/2018) [2021] ZALCCT 3 (19 February 2021). In this matter, an employee was taken to task for her excessive use of social media during working hours and also for accessing confidential information.
Facts Of The Case
In this matter, the employee was employed as a typist. On one occasion, she was filling in for the bookkeeper at reception and happened to see a sheet on which the salaries of all employees were detailed. The employee noticed that other employees had received pay increases while she had not. Subsequently, the employee took this matter up with management.
The employer gave evidence that her performance at work was ‘slapdash’, as evidenced by the typing errors in her work, and that she spent excessive time on social media and playing games during work hours.
The employer further stated that he should have fired her a long time ago, however he felt sorry for her. During the engagement with the employee, he invited her to resign. Her response was that the employer ‘should do what he wanted to’. This remark was construed as insubordination and, as a result, the employee was dismissed.
The CCMA found that the dismissal of the employee was substantively unfair but procedurally fair. The employer was ordered to pay nine months' compensation. On review to the Labour Court, the Court overturned that decision finding that the employee had been spending excessive time on social media while the rest of her work was not being done.
Although the Court found that she was not guilty of insubordination, they did find that the amount of time she spent on social media – including Facebook – was a problem. The employee’s Facebook usage, in the evidence, made up 54% of her non-work computer usage. Owing to this, the Labour Court confirmed that the decision of the dismissal was fair and not substantively unfair.
The employer took a pragmatic approach. Looking at all the evidence, notwithstanding what the charge was, the Court took the view that considering all of the evidence the dismissal was substantively fair. Time spent on social media can be tracked by the employer. Many employees spend excessive time, not working but on social media platforms.
If you have any queries, on matters such as the one above or other labour-law-related matters, please don’t hesitate to contact me at johnny@globalbusiness.co.za or Grant at grant@globalbusiness.co.za.
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