Defamation increasing at the workplace

Defamatory acts are increasingly common in the workplace and should not be ignored.

These manifest in different forms and can permanently damage the employer's as well as the employee’s reputation. Freedom of expression, which is frequently invoked to defend defamatory statements made against a third party, is not without limits, especially in an employment context.

The concept of defamation makes it necessary to reconcile the right to protection of reputation with the right to freedom of expression, since the former generally takes away the latter. The courts will seek a balance between these two fundamental rights, which are both protected by the Constitution.

Thus, while in some cases the courts recognise the right of employees to express themselves about their employer, they will ensure that the comments are not factual statements that prove to be false, unfounded, distorted or exaggerated.

Employers understand that they have an obligation to investigate complaints of workplace misconduct. However, communication made during internal investigations are not totally without risk. Reports of misconduct, such as theft, assault, or abuse of others, can raise the scepter of defamation claims if the employer does not manage the communications.

Further, while a qualified privilege exists for potentially defamatory statements made during misconduct investigations, such privilege is not absolute and can be lost.

The courts agree that defamation consists in communication that causes someone to lose in estimation or consideration, or that prompt unfavourable or unpleasant feelings.

Courts also recognise that employers have a qualified privilege that attaches to potentially defamatory communication made during an investigation following a report of employee wrongdoing.

However, this privilege only suffices where the communication is passed to persons having an interest or duty in the matter to which it relates.

Qualified privilege is defeated where an employee fails to show that the statement was motivated by actual malice at the time of the publication, which means that the statement was made with “knowledge of its falsity or with reckless disregard as to its truth.”

It is important, therefore, that when investigating misconduct, especially where they involve communication that could be considered defamatory that employers create a system through which employees can report misconduct and a system to investigate such reports.

Through the system, an employee should be able to establish who has a duty to report misconduct and the channels it is reported.

Second, employers should consider training employees on reporting alleged misconduct and what supervisors should do when they receive such reports.

Employers may want to limit communication about alleged misconduct. In this case, the employer did not communicate the information to individuals outside of those within the investigative scope.

An employer should not make defamatory comments or seek to harm a former employee when contacted by another employer for references.