Many people cannot live without their cellphones, and spend so much time looking at them that screen time has become a health concern. Phones have also changed the way we work, and even what can get us fired. Gugulethu Mhlungu finds out how. Pictures XX
In early 2019 an image of an employee using their phone at a KwaZulu-Natal home affairs office front desk went viral. This led the public to debate whether it was appropriate for civil servants to be on their phones while on duty. In the wake of the public outcry, the parliamentary portfolio committee on home affairs called for a ban of cellphones in the offices. “It is unacceptable that the public spends excessive amounts of time at home affairs offices while officials spend a disproportionate amount busy with their cellphones. Officials are primarily employed to offer a service,” chairperson Hlomani Chauke said in a statement.
Banning cellphones altogether
As phone usage and time spent on the Internet becomes even higher than that spent watching TV or listening to the radio, companies are trying to manage social media and cellphones during office hours. Some are going as far as banning and blocking access to social media. “As workforces get younger and cellphones become more ubiquitous, we see new challenges for the workplace. Issues such as ineffective workforces as a result of the huge distraction, time spent staring at screens, poor sleeping patterns all characterise a lot of cellphone use, and companies are struggling to manage this,” says Emma Sadlier, leading social media law specialist and co-author of Don’t Film Yourself Having Sex and Other legal Advice for the Age of Social Media.
According to Jacques van Wyk, labour expert and director at Werksmans Attorneys, an employer has the right to regulate the conduct of its employees in the workplace. “This controls the workplace and regulates how employees must work during working hours. There is no specific law dealing with this, but this employer right arises from the contract of employment and the Common Law. Employees cannot attend to personal business during working hours, including making personal calls. However, best practice suggests that some allowance be made for receiving or making personal calls during working hours provided that this does not interfere with your performance (or a colleague’s).” An emergency situation where your child’s school is calling or you are ill would be a reasonable circumstance in which the prohibition can be waivered,” he says. In other businesses, a ban on cellphones can be for safety and security reasons – radiation can pose a risk in aviation or in a laboratory and mine where chemicals can endanger your life as well as others. Using cellphones can then lead to dismissal as this can be considered gross misconduct. Jacques further explains that an employer can institute any rules provided they are fair. “This means that they are well within their rights to implement a policy that limits or strictly prohibits the use of cellphones during working hours provided the rule is lawful and reasonable. If usage is merely limited, management should formulate the policy in such a way that employees are able to clearly understand what they may or may not do.”
Trade secrets and confidentiality
Cellphones also pose a risk in the sharing of confidential information and as such, some companies may ban them. Your employment contract may have a clause about acting in the company’s best interest and exercising care. This means the company trusts you not to share information you have been entrusted with. Jacques says doing so can land you in hot water. “Confidential information, trademarks and copyrights are all the property of the employer. So, if you leak such info, you can get fired for gross misconduct and risk being sued for damages or losses the company suffered by the leaking of information,” he explains. While you might want to share a selfie or outfit of the day at the office, you have to be careful not to unintentionally share private information, including locations. Emma also advises that you don’t take a picture of a desk as it might have something confidential on it.
Outside of the workplace
Another complication phones and the Internet have added is the blurring of private versus public life. We have witnessed countless stories of people being fired for social media posts and things said or written in private. “There is no longer such a thing as private capacity; those words are not legal disclaimers or a magic wand. You don’t even need to be at work to get into trouble,” says Emma. Jacques says you can get fired for something you said in private/off duty, if a connection that causes reputational damage can be drawn between you and employer. “Reputational damage involves the employer saying that they can no longer be associated with you because of your conduct, which goes against what they stand for.” But, just how far can they go? “I was once involved in a case where some colleagues went to a social event at someone’s house over the weekend. Someone posted anti-Semitic statements that their employer was made aware of. They were then disciplined and fired.” He further explains that there are some offences that the employer is compelled by law to take up, such as sexual harassment. Cases such as racism, sexism, homophobia or any form of hate speech do not have to be taken up. But, the employer is well within their rights to do so because it reflects poorly on them. In addition to losing your job, you run the risk of being sued for damages, being interdicted or as with the case of Vicki Momberg. She was caught on camera racially abusing black police officers who had come to her aid after a smash and grab incident in 2016. You can be criminally charged with crimen injuria (the wilful injury of someone’s dignity) and serve jail time. Emma says you have a duty to act in the best interest of the company. This also includes in the family WhatsApp group, personal email or anywhere else where what you say or do can be recorded and shared publicly.
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Before you post or send…
Jacques says there are practical ways to prevent you from getting in trouble. Just ask yourself the following before you post or send anything:
- What does the company social media and IT policy say?
- What does the constitution law say about certain speech? And, does what I’m about to say or do contravene either the company policy or law, remembering that freedom of expression is not an unlimited right?
- Will this have a negative impact on my employer or another person’s reputation or standing?