Joseane Ribeiro da Silva
Lawyer at Marcos Martins Advogados
We are currently experiencing a veritable avalanche of information and sharing on social networks. However, what seems simple, such as maintaining a Facebook page, for example, can become a major headache for companies and their employees.
When we make use of media tools, be they blogs, personal pages, complaints sites, among others, it is normal to feel the false sensation that we are dealing with the public in the same way we would if that conversation had originated at a bar table, for example. In other words, with the information restricted to the few listeners at the time and without many consequences afterwards.
However, this is not the real scenario when we talk about digital media and its relationship with the employment contract. Recent decisions by the Labor Courts show that they are constantly being used as evidence for sanctions and even just cause, when their excesses have been established. There have been many cases of inappropriate conduct resulting in employees being dismissed for just cause.
We must be aware that the right to freedom of expression does not protect absurdities. The fact of having a personal page on the World Wide Web does not authorize anyone to offend the image of others, even if those others are legal entities. As such, workers who publish offenses against their employer or company on the Internet can be dismissed for just cause.
To apply this punishment, article 482, paragraph K of the CLT is used by analogy, which tells us the following:
Art. 482 – The following constitute just cause for termination of the employment contract by the employer:
(…)
k) an act damaging to honor or good reputation or physical offenses committed against the employer or hierarchical superiors, except in the case of self-defense or the defense of others;
(…)
Sole paragraph. The practice of acts against national security, duly proven in an administrative investigation, shall also constitute just cause for dismissal of an employee.
The publication of an offense or undue exposure of the employer’s data on social networks is covered by article 482, K of the CLT, i.e. committing a harmful act against the employer or hierarchical superiors. In this way, it is possible to terminate the contract for just cause, since the continuity of the employment contract would be definitively jeopardized, in view of the fact that the offenses generated generally dilute the good relationship between the parties; which would be no different in the employee/employer relationship.
Among the main behaviors considered harmful to the employment relationship are the following: negative “posts” about the company or the job, making private matters about the employer public and mentioning the employer in online discussions.
When an employee puts the company’s name on their profile, they become related to it. Employees need to remember that the company’s problems should be dealt with by the company, which is the guideline for good behavior between the parties. If the company has shortcomings or is not acting well towards its employees, this can and should be pointed out, but by internal means: conversations with the boss or the use of an internal ombudsman in large companies, for example.
It should be noted that, contrary to what many people think, posts on social networks are also considered lawful evidence in legal proceedings.
Article 332 of the Code of Civil Procedure establishes that even evidence not specified by law can be used as evidence, as long as it complies with legal and moral criteria:
Art. 332 All legal means, as well as morally legitimate means, even if not specified in this Code, are valid to prove the truth of the facts, on which the action or defense is based.
This being the case, the use of public posts on the internet is widely legal as a means of proof, and the principle of atypical evidence, widely disseminated in article 332 of the Code of Civil Procedure, is applied to resolve this issue.
There is no mention of the right to privacy or freedom of expression, since maintaining a public profile on social networks implicitly means that everything posted there will be considered public. Furthermore, the above rights are not absolute and have limitations, which are necessary for the beneficial existence of any relationship.
To corroborate what has been said above, it is worth quoting the brilliant ruling by I. Judge Lorival Ferreira dos Santos, of the TRT 15th Region:
JUST CAUSE. IMPROPER USE OF THE INTERNET. CONFIGURATION. Nowadays, access to the internet is a reality available to the vast majority of people who, through it, have the possibility of connecting with the world, both in the family and professional spheres. In the labor sphere, the internet has been widely used and can represent a genuine work tool, but its misuse by employees has caused discussions, mainly because there is still no specific legislation regulating the matter. As a preventive measure by employers, what has been observed today is the monitoring, restriction or even total blocking of internet access for private purposes during working hours, which is perfectly reasonable within the employer’s directive and regulatory power. However, monitoring the use of the internet in the organizational environment has become increasingly difficult, as mobile phone technology, for example, has broken through any barriers imposed by the employer. In cases where it is proven that the company forbade internet browsing during working hours and the employee defied the limits imposed in order to access it habitually via their personal cell phone, it is undeniable that just cause for dismissal has been established, as it is clear that malpractice and bad procedure have been practiced. If it is also shown that the employee offended co-workers, company clients or the organization itself via the internet, it is also possible to classify him in the situations provided for in paragraphs “j” and “k” of article 482 of the CLT. The fact is that every employee must know that they are part of the context of the company, so their inappropriate behaviour can cause serious damage to the establishment, and what is posted via the universal internet connection can affect safety, productivity and even the reputation of a consolidated organization. Therefore, employees must behave with the same zeal on social networks as they do in the workplace, because in the virtual world the medium is different, but the actions and consequences are the same as in the real world. An employee’s wrongdoing in the virtual sphere is equivalent to their wrongdoing in the tangible world; after all, their profile, whether real or electronic, is unique. Appeal dismissed in this respect. (TRT 15ª R. Proc. 0001843-84.2012.5.15.0018 ROPS. 5th C. 3rd T. Rel. Des. Lorival Ferreira dos Santos. DEJT 14/06/2013, emphasis added)
Thus, with the advent of new digital media, more specifically in labor relations, employees must act with ethics and discipline not only in the workplace, but must also ensure good relations with the employer as a whole, expanding this behavior beyond the physical boundaries of the company.
Given all that has been said, we have seen that the excesses inherent in the right to demonstrate are totally punishable when they hurt the employer’s honor. The Federal Constitution guarantees the right to free expression of thought as a fundamental guarantee. However, the same constitutional rule also protects the right to compensation for damage to another person’s image. Respect for limits is essential. Only in this way is it possible to build a healthy and lasting relationship between employee and employer.
