In a digital age where there are billions of active social media users globally it is conceivable that employees engage in activities and posts on media platforms, that may result in their dismissal. However, an employee’s social media posts can also be scrutinised outside of the misconduct space. In Nilan v Nthabeni (2017) 5 BLLR 521(LC), the South African court considered an employee’s social media post to decide whether the employee’s resignation was due to his desire to work for a competitor or to his wife having an affair with his employer.
Bruce Niland (Niland) was a professional hunter. He was employed by Gregg Harvey (Harvey). Niland’s wife had an affair with Harvey over several years. Niland became aware of this affair in 2013, confronted his wife and managed to reconcile his marriage until a few years later in April 2015 when he discovered that the affair continued behind his back. At this point Niland resigned and he claimed that his resignation was a result of a constructive dismissal. He then referred the dispute to the CCMA on this basis.
During the arbitration, Niland testified that he was taunted by Harvey in respect of this affair in April 2015 but only resigned three months later in July 2015. It was at this point that Niland posted on social media that he had decided “to move on to greater thinking”.
When he resigned, Niland did not mention the affair. He simply stated that the time had come for “a parting of the ways”.
At the CCMA, the arbitrator found that Niland had not discharged the onus to show that he was constructively dismissed. The award was taken on review.
The Court re-iterated the two stage test used to determine if there was a dismissal namely:
- The employee must show that there was a dismissal;
- The employer must show that the dismissal was fair.
The Court found that the fact that Niland had been aware of the affair in 2013, yet continued to work for Harvey until July 2015 indicated that the affair was not the reason for the resignation.
The Court held that on the probabilities, the true reason for Niland eventually resigning was that he secured alternative employment elsewhere, which is what resulted in his social media post on the evening of 14 July 2015 which read as follows:
“This is the hardest message I will ever right have decided to leave hunter-shillsafari going on to bigger thinking with my family’.
The Court held that Niland was not constructively dismissed.
If an employer has to defend a constructive dismissal claim the period between the alleged trigger of the resignation and the resignation itself is important.
The conditions or events which is the source of the allegation that the employment relationship had become intolerable needs to be the main cause of the termination of the employment relationship. In Niland’s case, whilst the affair made the employment relationship somewhat uncomfortable, it was not the main cause of the resignation, but rather it was him securing alternative employment.
As always, be circumspect about what you post online.