Can an employee be penalized for offending an employer in a WhatsApp group?

Mar 13, 2023

Worker was dismissed for uttering offensive expressions, without the right to severance pay.

The massification of new technologies in the labor field has implied the existence of challenges and realities to resolve conflicts that may exist between the legitimate powers of the employer and the rights of the worker.

One of the emblematic cases is related to the application and use of WhatsApp as a mechanism for communication and coordination between workers or between workers and their respective management positions.

The case we are commenting on this occasion occurred in a WhatsApp group in which all the company’s workers participate, who were added without requiring their consent, using their private telephones and lacking institutional regulation regarding both its frequency and its use.

In this context, there was an exchange between a private employee and his colleagues, as well as with his boss, when he uttered offensive expressions towards the latter, adding audiovisual content to his statements. As a result, the employee was removed from the respective group and dismissed the following day without the right to severance pay.

As a result of the foregoing, the former employee filed a lawsuit claiming his freedom of expression, as well as the impropriety of his dismissal. Hearing the case (case RIT T-574-2022 of the 2nd Labor Court of Santiago), the court dismissed the plaintiff’s allegation, stating that:

“The expressions uttered by the plaintiff lack a content of protest of working conditions, are not part of a speech vindicating rights or in the face of contractual breaches, being devoid of this context and do not appear as mostly relevant to the worker’s freedom of expression.”

This is an extremely interesting pronouncement because it highlights the importance of the institutional regulations of communication mechanisms used in organizations for labor purposes, as well as for establishing the scope of a fundamental right such as freedom of expression in the context of the provision of labor services.

For more information on these topics, please contact our #azLabor group:

Jorge Arredondo | Partner |

Jocelyn Aros | Senior Associate |

Felipe Neira | Associate |

Alejandra Figueroa | Associate |

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