Dismissal for comments made on Facebook

“But one cannot be happy in a family business, especially when the kids join the company after you have been there for six years and they try everything in their power to make you look stupid.”

“Now we have the son working there as well who has no idea but is pretending he has a clue!”

“Had a day from hell! “

“My boss was a total meanie 😦 no idea how to treat people let alone management.“

“From so called ‘professionalism’ 2 dumb brats runnin a mickey mouse business.”

Do any of the above Facebook posts sound familiar? If you are an employee, hopefully not – or it is worth having (at the least) a very careful check on your privacy settings.

Although the employee who posted the comments above did not name her company or the persons she was referring to, and claimed that her Facebook page was private, her employer was able to view and print content from her page and lawfully dismissed her as a result.

When rejecting the employee’s challenge to her dismissal for posting the comments, the CCMA arbitrator found that by leaving her Facebook page public, the employee had waived any protections her posts might otherwise have enjoyed as private communications. It was highly likely that some people viewing the posts knew to whom the employee was referring (especially as her Facebook friends included colleagues and ex-colleagues), and there was a real potential that the comments would harm the company’s and individuals’ reputations.

The employee was guilty, at the very least, of gross insolence, if not insubordination, and dismissal was justified.

Even with privacy settings in place, disrespectful posts about an employer could find their way to the employer’s notice (especially if your Facebook friends include colleagues or friends of colleagues) and could result in disciplinary action. It does not matter that the posts are made outside of working hours and from a home computer.

The bottom line? The arbitrator in one case pointed out that “if employees wish their opinions to remain private, they should refrain from posting them on the internet”. Or, in the colourful turn of phrase of American technology journalist Erin Bury: “Don’t say anything online that you wouldn’t want plastered on a billboard with your face on it”. This advice applies equally to Facebook, Twitter, as well as any other online forum.

The Role of the Sheriff of the Court

The image of the sheriff is familiar to everyone who grew up on a typical Western diet of American TV shows. In the United States, a sheriff is a law enforcement official, elected at local level for a term of several years, and often a highly influential political figure in the community in which he or she serves. They are generally responsible for patrolling their communities, apprehending violators of the law and serving legal process. They often are responsible for their community’s jail and sometimes even perform autopsies. The Los Angeles Sheriff’s Department is the largest in the United States, with well over 8000 staff.

In South Africa we too have had sheriffs since the 1800s, and they form an integral part of our legal system. However many South Africans will never have encountered a sheriff, and will wonder whether we really have gun-toting, badge-wearing “lawmen” wandering our communities.

In South Africa, our sheriffs play a less high-profile, but still fundamentally important, role. They are not elected officials, but are rather appointed by the Minister of Justice, and may hold office until they reach 65 years of age, after which they can re-apply for appointment in competition with any other contenders. They are also not civil servants, but effectively entrepreneurs who perform state functions under contract to the state.

Our sheriffs’ duties are to formally hand over and carry out into action various documents issued by our courts. They do not administer jails, perform medical duties or carry out general crime-fighting duties. The documents they serve and execute include summonses beginning court cases, court orders, as well as warrants which direct that property should be seized or persons arrested or evicted.

Whilst our sheriffs do not wear badges, they are required to carry identification cards issued by their regulatory body – the Board of Sheriffs – while on duty. If you are visited by someone claiming to be the sheriff of the court, you are entitled to demand to see this identification card, and the sheriff is duty-bound to produce it.

When serving a court document, the sheriff does not (or should not) merely hand it over to you and depart. She or he is required to explain the nature of the document to you as well as, in general, what you should do in response. For example, when serving a summons the sheriff should tell you something along the lines of “this is a document which is starting a court case against you, in which person X is claiming that you owe them R100 000,00 because of a loan, and if you want to defend the case you must complete a notice of intention to defend and get it to the other party’s attorney and the court within ten days”.

Should you consistently leave your premises locked and vacant, however, the sheriff may serve the document on you by simply leaving it at your premises. Avoiding the sheriff is not helpful, as few legal matters require that documents be handed to you personally – an exception is a divorce summons which can only be served personally and cannot be left at your premises or, for example, handed to your domestic worker at home or your colleague at work.

As an officer of the court, the sheriff has quite extraordinary powers. She or he has the right (provided the court has authorised this) to:
Enter your home or office, even if you are not there – including by employing a locksmith to break your locks if necessary;
Open any door, vehicle of item of furniture at your home or office;
Take away from your home or office any property – including cars and furniture, but excluding the most basic items such as your bed – and sell it, and even sell your home or office building, to recover monies owed by you.

Conviction for an offence involving dishonesty, or any offence where imprisonment was ordered without the option of a fine, disqualifies a person from being appointed as a sheriff in the first place.
Because sheriffs may receive monies from debtors, or sell their goods to raise money, on behalf of creditors, there are rules and safeguards in place to prevent them from stealing trust monies, and to provide redress should this nevertheless occur.

They are required to act impartially and maintain confidentiality.

They are also required to perform their duties without unreasonable delay – as the service of summonses or execution of warrants or court orders is usually critically important to the parties concerned. Late service of a summons could mean that a claim prescribes through the passage of time and becomes completely unenforceable in law. Failure to execute a warrant of attachment of property promptly could mean that a debtor is able to hide property and frustrate a creditor from recouping what is owed to them. Tardy execution of a warrant of arrest could allow a defendant to escape the country.

If a member of the public believes that a sheriff has committed any misconduct, they may complain by lodging with the Board of Sheriffs an affidavit detailing the misconduct. A sheriff guilty of misconduct may be disciplined, and may be suspended or removed from office.