Heike Hartnick researched the legal parameters of people being dismissed from their day jobs for misconduct outside an employer's premises and working hours. Image: supplied

In an age where a single social media post can go viral in seconds, the line between personal expression and professional conduct is becoming increasingly blurred. For many employees, what they share online — even outside of working hours — could cost them their jobs. But are South Africa’s labour laws keeping up?

A University of the Western Cape (UWC) researcher and recent graduate, Heike Hartnick, has interrogated the legal parameters of people being dismissed for misconduct outside of an employer's premises and working hours. At the Autumn Graduation, 27-year-old Hartnick was awarded her Master of Laws: Mercantile and Comparative Labour Law for her thesis titled “Dismissals for Misconduct Conducted Outside The Employer’s Premises, Particularly With Reference To Misconduct That Takes Place On Social Media”.

She said: “I realised before embarking on my research that because of the COVID-19 pandemic and subsequent work from home policies, many people have either been dismissed or faced disciplinary action while working from home.” 

Hartnick said that even off-duty misconduct cases increased because working hours were becoming a suggestion to employees, ie not adhering to their required hours.

Further, Hartnick noted that “there were many blurred boundaries between personal and professional conduct. A lot of people would be more flexible working from home, so they don’t attend to all their work responsibilities during working hours, and in the evening they would do what they were meant to do during the day - essentially, working outside of working hours, which is not regulated. So whatever happens in those hours is a factor that contributes to disciplinary action.”

In her research, she argued that the Labour Relations Act No. 66 of 1995 should be revised to explicitly include provisions on dismissals for social media-related misconduct, incorporating principles of both procedural and substantive fairness?. Her research was qualitative and analytical in nature, exploring how current legal frameworks and precedents apply to dismissals related to employee misconduct on social media, especially when that misconduct occurs outside the employer’s physical premises.

Hartnick further said: “Employers in South Africa should establish comprehensive and clearly articulated social media policies. These policies should define acceptable and unacceptable conduct, outline disciplinary consequences, and ensure employees are trained and informed about these expectations. Without such policies, dismissals for off-site misconduct may be deemed unfair?.”

In her study, Hartnick also evaluated South African labour legislation and current laws in Australia, which caught her attention during her internship. “In 2022 and 2023, I was afforded the opportunity of an internship at the International Labour Organisation in Geneva, Switzerland, and one of my responsibilities was comparing legislation to the recommendations and conventions of the United Nations and the ILO itself. The more I engaged with other countries' legislation, it became apparent to me that SADC (Southern African Development Community) countries have similar labour laws, similarly based and founded like South Africa’s,” she said.

With social media prevailing in everyday life, Hartnick’s research recommends establishing a structured legal test to determine what constitutes social media misconduct warranting dismissal, considering the severity, context, and impact on the workplace?.

Now that her Master's is complete, Hartnick looks forward to making her mark on the legal landscape and is currently a candidate legal practitioner at a leading Cape Town law firm. She has written the Competency-Based Examinations and is awaiting her final results. Once her results are in, Hartnick will determine whether to take her research further.