We’re all on them.  We all hate them. They’re intrusive and invade our personal time.  WhatsApp work groups are becoming the new normal. This blog examines what the law says about them and whether we need to accept that they are an inevitable part of our work experience.

We have already covered ten useful tips on how to engage in WhatsApp generally, always keeping in mind the ever important “Billboard Test – if you wouldn’t put it on a giant billboard with your name, photograph, and your company or school, don’t put it in a WhatsApp group (or any social media). In fact – do not let it exist in digital format at all”.

With the world in lockdown, it is little wonder that companies are turning to WhatsApp as a preferred method of communication because it is convenient, efficient and allows for open communication. All of these are, on the face of it, clear positives. But where do you draw the line in the sand? There are, as yet, no specific laws governing the use of WhatsApp Groups in the workplace in South Africa. However,  an article titled Bully Bosses told to shove WhatsApp Groups  concludes that WhatsApp Groups should comply with and be governed by the Basic Conditions of Employment Act (“BCEA”) which specifically sets out that a daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which must include a Sunday, must be given to all employees*.

*Note must be made however that whilst all employees have the full protection of every section of the BCEA, only those employees earning below the threshold of a gross annual pay of R205 433.30 (the “Threshold”) have a legal right to “demand” that employers comply with Section 15 of the BCEA regarding daily and weekly rest periods. Employees who earn above the Threshold, do not possess the same right to demand but rather possess a right to negotiate with their employer on working hours and rest periods. In this regard, the employer must, when determining the hours of work of the employee earning above the Threshold, take into consideration section 7 of the BCEA, which states that: “Every employer must regulate the working time of each employee (a) in accordance with the provisions of any Act governing occupational health and safety; (b) with due regard to the health and safety of employees; (c) with due regard to the Code of Good Practice on the Regulation of Working Time issued under section 87 (1) (a); and (d) with due regard to the family responsibilities of employees”. Similarly, according to section 48 of the BCEA, the employer is in the same boat – the employer cannot demand that employees earning over the threshold must work overtime, standby duties, attend callouts etc, without limitation and without compensation. Reasonableness should therefore always apply, regardless of your annual earnings.

Therefore (and despite the Threshold), an employee should not be expected to be available 24 hours a day, 7 days a week (being online does not mean you are permanently available). The only possible exception to this rule would be if there is urgent or necessary information and/or an instruction which cannot wait until ordinary working hours – convenience does not qualify as either urgent or necessary.

So the question is – do I have to be part of a workplace WhatsApp Group? Well, there are two starting points a) has your employer proven a necessary and genuine purpose to the WhatsApp group (so not just for sharing motivational messages) and b) does the company provide either the device and data or does it make a contribution towards the cellphone costs as part of the remuneration package? If yes to either of the above questions, then yes, you can probably be expected to be part of the workplace WhatsApp Group and therefore be expected to adhere to the company’s WhatsApp Policy as a reasonable and lawful instruction during ordinary working hours.

With that in mind we thought we would set out some useful tips to make WhatsApp in the workplace a little easier to deal with:

  1. Always keep in mind the Billboard Test;
  2. Always be very careful what you post – no heated debates or strong opinions on any sensitive topics, such as those related to racism, sexual orientation, xenophobia, homophobia, ethnically divisive remarks, remarks about religion or any other topic that would offend or disturb the workplace environment. Any comments related to the above, may very well lead to disciplinary action being taken against you, so avoid like the plague;
  3. Etiquette is always important – only respond if absolutely necessary. Random LOL’s, “noted” or “I don’t know” can cause an irritation rather than be constructive,
  4. Do not air grievances or discuss details of a sensitive topic or nature on the public group – take it offline, especially if it is specifically between two people;
  5. Likewise if there is inappropriate content shared on the Group chat, disassociate yourself immediately or voice an objection on the group (as discussed under our ten tips for WhatsApp);
  6. Always ask yourself the following four questions – a) is it legal? B) is it relevant? c) is it necessary? and d) is this a good time to post? Keep in mind that if it is urgent, a phone call to the respective person is probably more professional and if it is not urgent, it can be better dealt with in an email during normal working hours.

Something to keep in mind (according to the BCEA), a company cannot demand responses or actioning of instructions outside of working hours, unless of course it is communicated as both necessary and urgent or if it is otherwise agreed to between employer/manager and employee. Likewise, they cannot discipline you for not responding immediately to a message that could have been discussed during normal working hours. Remember, whilst the WhatsApp Policy may dictate response times and what action may or may not be required, bullying by your boss is a no go and should be reported directly to HR as soon as possible. In fact, any inappropriate content from any work colleague on a work WhatsApp Group, if not already attended to, or if it still makes you feel uncomfortable in any way, it should be brought to the attention of your HR.

You may recall that in 2017, four FNB employees were dismissed for “offensive political discussion” and for “using offensive language” on a private WhatsApp Group. We think every company should have specific guidelines on how to engage in WhatsApp in a professional capacity. If you have any queries or concerns or if you need help drafting policies or guidelines, please feel free to contact us.

Article by Alicia Koch