Every day, about 60 billion messages are sent on WhatsApp, an application that reached the mark of 1.5 billion active users per month this year.[1] In Brazil, the instant messenger reached 120 million users about a year ago, equivalent to more than half of the country's inhabitants. Parallel to this rapid spreading in recent years, there has been a significant increase in dismissals due to the improper use of software in Brazil due to the tenuous line between their use in private and professional life.

While using WhatsApp to communicate regarding work issues, many employees are also using the tool to complain or make jokes about the company they work for, their bosses, or colleagues. What most of them do not know is that, although it is a private instrument, employees can be warned, suspended, or even have their employment terminated for just cause if it is found that the content sent is offensive to the employer.

Employees should be cautious, therefore, when addressing colleagues or a hierarchical superior in conversations via the application, because if the comments about the employer go beyond the limits of the freedom of expression, the conduct might be classified within in the scenario provided for in letter k, of article 482, of the Consolidated Labor Laws (CLT), which provides as a just cause for termination of the employment contract by the employer an "act harmful to the honor or good reputation or physical offenses committed against the employer and hierarchical superiors, except in the event of legitimate defense of one’s self or others."

For this reason, more and more WhatsApp records are being used in labor lawsuits, while the Labor Courts have received as sufficient evidence the messages recorded in the application itself.

Offenses, jokes, biting complaints, or other conduct that may tarnish the good name of the employer are subject to termination for just cause. The novelty is the medium in which such conduct occurs (WhatsApp), and for this reason it is important to offer in-house training on behavior in the application.

In a recent decision, the Second Panel of the Court of Labor Appeals of the 23rd Circuit dismissed an ordinary appeal filed by the claimant and upheld a trial decision that recognized the just cause of his dismissal since offenses to the company where he worked were found in a WhatsApp group.

As reported in the record of case No. 0000272-85.2017.5.23.0081, in response to a posting from a co-worker on a pizza buffet offered by the company, the employee sent the following message: "This buffet sucks. only 2 hours ... Because of the delay it’s like a cafeteria. you can’t get more than two piece hahaha” [sic].

The judge drafting the opinion on the ordinary appeal, Appellate Judge Roberto Benatar, upheld the just cause applied to the employee on the grounds that "the worker’s behavior consisting of publishing a derogatory comment on the quality of the service of the defendant in a group created in a messaging application reveals clear offense to the honor and the good reputation of the employer, thus yielding an opportunity for termination due to just cause."

In another case, decided by the Court of Labor Appeals of the 11th Circuit, the claimant, in the capacity of appellant, sought to overturn a trial decision that rejected a plea to reverse just cause on the grounds that the injuries directed at the employer were not rendered in the work environment or even while working.

In the meantime, the adjudicatory panel accepted the trial decision’s reasoning on the merits, according to which the decision made by the employer does not represent censorship of the content of the conversations held within a group via the mobile phone. This is because offense against superiors in a social network exceeds the limits of employees’ freedom of expression and consists of "a fact that permanently impedes the continuity of the employment agreement due to fiduciary breach", considering that "the employment relationship has as one of its pillars trust between the parties, which unfolds in the duties of good faith and loyalty, which must be observed even outside the work day and the place of provision of services":

“CLAIMANT'S APPEAL. JUST CAUSE. ACT HARMFUL TO THE HONOR AND GOOD REPUTATION OF THE EMPLOYER CARRIED OUT BY THE EMPLOYEE. DEPRECATORY COMMENTS ABOUT HIERARCHICAL SUPERIOR PUBLISHED IN SOCIAL NETWORK (WHATSAPP). APPLICATION OF ARTICLE 482, ITEM K, OF THE CLT. The employment relationship has as one of its pillars the trust between the parties, which unfolds in the form of the duties of good faith and loyalty, which must be observed even outside the work day and the place of provision of services. In this case, by publishing derogatory comments about hierarchical superiors on a social network (“WhatsApp”), the claimant carried out an act detrimental to its honor and good reputation, especially when considering the repercussion and scope that information can have on account of the means by which it was disclosed, which authorizes the application of just cause by the employer, with a basis on article 482, k, of the CLT. Appeal heard and granted.” (Case No. 0001977-57.2014.5.11.0017).

Although just cause is the maximum punishment that can be applied by employers, there are situations in which a single incident is serious enough to justify immediate termination. As already settled by the Labor Courts, offense to the honor and good reputation of the employer is a clear example of this.

With the advancement of new technologies, training of teams is therefore essential to prevent employees and employers from committing punishable acts, whether to employees, as warnings, suspensions, or even termination for just cause, or to employers, such as judgments for harassment committed by its representatives.

In the event of use of a message as evidence in court, most courts admit the submission of screenshots of WhatsApp. However, even in view of the informality of the Labor Courts, the ideal is to have a transcription of the content through notarial acts because of the possibility of using other applications to manipulate the conversations.

 

 


[1] Techtudo, "WhatsApp beats 1.5 billion active users mark." https://www.techtudo.com.br/noticias/2018/02/whatsapp-bate-15-bilhao-de-usuarios-ativos.ghtml. Accessed on: August 19, 2018.