SOCIAL MEDIA AND EMPLOYMENT LAW IN ZIMBABWE

Relevant knowledge about the following is necessary:

Interception of Communication Act (Chapter 11:20) eg section 3.

Constitution of Zimbabwe; Section 57 (right to privacy of communication); Section 61 (freedom of expression). 

Labour Act (Chapter 28:01); Section 12B (right not to be unfairly dismissed)

SI 15/06 and other Employment  Codes; misconduct- conduct inconsistent with express or implied terms of the employment contract.

EC Policies or ICT policies vs. section 6 of the Labour Act (unilateral variation of employment conditions)

What is social media?

It is a collective of online communications channels (websites and applications) dedicated to community –based input, interaction, content –sharing and collaboration.Examples; Facebook, Google+, YouTube, Twitter, LinkedIn, Pinterest, WhatsApp, Telegram , WeChat , blogs etc

Use of social media to recruit, (secret screening or background check)

- it is unlawful in France if without employee’s consent

-it may not be unlawful if the information is public.

Use of social media to denigrate or defame employer ; to harass other employee to share confidential information (trade secrets); Defence of privacy inapplicable if ‘Facebook friend’  brings out information. ;South African case of Haliwell v  Holiday Inn Sandton.

-May be a misconduct

Employee taking LinkedIn contacts (collated during employment) away upon termination of employment.

Employer taking over ex employee LinkedIn account; Identity theft by employer? Yes, as in the US case of Eagle v Morgan .

The practice of employers demanding Facebook login details of interviewees or employees was  outlawed in many states in USA.

Use of LinkedIn contacts from former employer in breach of non –compete, non solicitation and confidentiality agreement by ex employee, led to ex employee being ordered to stop same forthwith; USA case of TEK v Hammernickemployment

 - such contacts held in UK to be owned by employer.; not by employee.

Employer using employee’s Facebook postings to prove fake sick leave

Freedom of expression and right to privacy on social media not always protected.

Employer’s vicarious liability for the actions of an employee on Facebook; Profile message; ‘I am gay’ in the UK case of Otomewo v Carphone Warehouse Ltd .

Employer taking over ex employee LinkedIn account; Identity theft by employer? Yes, as in the US case of Eagle v Morgan.

The practice of employers demanding Facebook login details of interviewees or employees was  outlawed in many states in USA.

Use of LinkedIn contacts from former employer in breach of non –compete, non solicitation and confidentiality agreement by ex employee, led to ex employee being ordered to stop same forthwith; USA case of TEK v Hammernick

Service of letters, court papers and other documents through social media like Facebook is getting recognition; CMC Woodworking Machinery Pty Ltd v Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD)Morgan .

Do managers in Zimbabwe have a right to form a trade union?

BAZ vs. BFMUZ & Registrar of Labour SC 15/2019 

Managers in the banking, finance and allied industry, formed a trade union and when they sought to register it with the Registrar of Labour in terms of Section 45 of the Labour Act, BAZ opposed it. The ground of opposition was that BFMUZ was not allowed to be registered as a union by virtue of section 45 (1) (b) of the Labour Act. The Registrar rejected this ground and registered the union as he did not see anything at law barring registration of such a union. BAZ appealed to the Labour Court and lost. It later appealed to the SC and lost. Date of SC judgment: 26 February 2019 From the grounds of appeal; Whether or not mangers are allowed to register a trade union in terms of section 45 of the Labour Act; Whether or not it was unconstitutional to register such a trade union; Whether or not it was contrary to public policy to register such a trade union.

From the grounds of appeal the following issues arose:

Whether or not mangers are allowed to register a trade union  in terms of section 45 of the Labour Act?

Whether or not it was unconstitutional to register such a trade union

Whether or not it was contrary to public policy to register such a trade union?

The judgment in summary was;

Section 45 (1) (b) (i) of the Labour Act provides that ‘a trade union shall not represent employers’ but it does not prohibit managers from forming or joining a trade union. Section 2 of the Labour Act  defines,  ‘employer’, ‘employee’ and ‘managerial employee’- manager is a sui generis employer/employee. Section  4 of the Labour Act , gives  every employee the right to  belong to a trade union.Section 45 of the Labour Act  must be read in line with the other provisions of the Labour Act. Section45 is in line with Constitution of Zimbabwe and International Convention. It is not contrary to public policy.